R v Hereora
[2016] NZHC 1870
•12 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-9467 [2016] NZHC 1870
THE QUEEN
v
ABRAHAM HEREORA
Hearing: 12 August 2016 Appearances:
J J Rhodes for Crown
P LeʼAuʼanae for DefendantSentence:
12 August 2016
SENTENCING REMARKS OF LANG J
R v HEREORA [2016] NZHC 1870 [12 August 2016]
[1] Mr Hereora, you have pleaded guilty to charges of arson, aggravated burglary (x 2), sexual violation by rape and indecent assault. The Crown has offered no evidence on the charges of assaulting a female and unlawfully taking a motor vehicle. I now discharge you on those charges under s 147 of the Criminal Procedure Act 2011.
[2] Your guilty pleas came after I provided you with a sentence indication on
7 July 2016.1 In the sentence indication I traversed the facts underlying your offending fully, and I do not propose to repeat those facts here. My sentence indication will be attached to and form part of these notes.
[3] When I provided you with the sentence indication, I had a summary of facts that was agreed for the purposes of the indication hearing. I also had the benefit of reading victim impact statements. I record that none of the victims has chosen to attend your sentencing today.
[4] The only new information provided to me in respect of your offending is that the cost of repairing the damage caused by the events underpinning the arson charge was approximately $5,000. Given your current circumstances the Crown does not seek an order that you be required to pay reparation in respect of that damage.
[5] At the sentence indication hearing, I took a combined starting point in respect of all of your offending of 19 years imprisonment. I then applied discounts to reflect your previous good character, underlying mental health issues and guilty pleas. This led me to an end sentence of 14 years six months imprisonment.
[6] I have now received a pre-sentence report and I need to consider whether I should alter the end sentence to reflect matters contained in the pre-sentence report. Unfortunately, however, the pre-sentence report is largely negative. It describes you as having little recollection of, and little insight into, your offending. You told the officer who prepared the pre-sentence report that you “sort of recalled doing it” and
that in relation to the sexual offending you were not in control “down to drug use”.
1 R v Hereora [2016] NZHC 1532.
[7] Today, Mr Le’au’anae has said that the attitude you displayed to the person who prepared the pre-sentence report is likely to be due to lack of recall and your inability to communicate. He says that this is symptomatic of his dealings with you. He also tells me that, until very recently, you have been unable to tell your family about the offending and even now they have very little knowledge of it.
[8] You present as something of a mystery because up until present offending you had led a virtually blameless life. Your family has advised Mr Le’au’anae that until approximately two years ago you held down a responsible job. You then went to Australia and, on your return, your life appears to have taken a downward turn due in large part, it would seem, to your involvement with cannabis.
[9] The pre-sentence report acknowledges that your regular use of cannabis is likely to have played a large part in your offending and this is reflected in the observations I made during the sentence indication. You will remain at risk of reoffending should you continue to be involved in the consumption of cannabis. For that reason it is important that you and the prison authorities take what steps as may be necessary to deal with that issue whilst you are in prison.
[10] I do not propose to alter the end sentence that I selected having regard to matters contained in the pre-sentence report.
Sentence
[11] On the lead charge of rape, you are sentenced to 14 years six months imprisonment. You are sentenced to concurrent sentences of two years imprisonment on the charges of aggravated burglary and indecent assault. On the charge of arson, you are sentenced to two and a half years imprisonment.
[12] All of those sentences are to be served concurrently, which means you will serve an effective term of 14 years six months imprisonment.
[13] For the reasons set out in my sentence indication, I do not propose to impose a minimum term of imprisonment.
[14] You may stand down.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-9467 [2016] NZHC 1532
THE QUEEN
v
ABRAHAM HEREORA
Hearing: 7 July 2016 Appearances:
J Rhodes for Crown
P Leʼauʼanae for DefendantSentence:
7 July 2016
SENTENCE INDICATION OF LANG J
[15] Mr Hereora seeks a sentence indication in respect of charges of arson, aggravated burglary (x 2), sexual violation by rape and indecent assault. He is due to stand trial on each of those charges in this Court on 25 July 2016.
[16] In the event that the sentence indication is accepted, the Crown will offer no evidence at sentencing on charges of assaulting a female and unlawfully taking a motor vehicle. The facts underlying those charges form part of the matrix relating to the remaining charges.
[17] In addition to the submissions of counsel I have received an agreed summary of facts, a copy of Mr Hereora’s criminal history and victim impact statements from the victims of the charges relating to the sexual offending.
Facts
[18] All of the charges arise out of a series of incidents that occurred on the evening of 28 August 2015 and the early hours of the following morning.
Arson
[19] In August 2015 Mr Hereora was residing with family members in Manukau. He arrived home in a taxi late in the afternoon of 28 August. He became angry when his sister refused to pay for the taxi. He went to the garage of the address and packed his belongings into bags. He then placed the bags in a shopping trolley. He then lit a fire in the garage and left the address with the shopping trolley.
[20] The fire was seen a short time later by neighbours, and they called emergency services. At the time of the fire family members were sleeping inside the main house. They were required to evacuate the house after they were woken by neighbours and alerted to the fire.
[21] The fire completely destroyed the garage and also caused damage to the main house. Windows in the main house were shattered from the heat, and plastic guttering was melted. Fortunately, however, the fire service was able to bring the fire under control before it was able to cause further damage to the main dwelling.
[22] After leaving the address where he had been living, Mr Hereora walked a short distance and then left two of his bags at the rear of a residential address in another street. When members of that household saw him leaving his bags, they confronted him. He told them to look after his property, and said he would be back in a few weeks to pick it up. He then left the address. The occupants of the address called the police, and the police arrived at the address at about 7.30 pm to uplift the property. They observed that both bags were marked with Mr Hereora’s name.
The first aggravated burglary and the sexual offending
[23] Mr Hereora went to a residential address in Manurewa between 9.30 and
10.30 pm the same evening. That address was occupied by the first complainant, an
89 year old woman. That evening the second complainant, who was 71 years of age, was staying at the address overnight in order to care for the first complainant. Mr Hereora had no previous connection with either the address or the complainants.
[24] Mr Hereora walked around the outside of the address and located the mains power box. He then removed the cover of the power box and cut power to the dwelling by removing the main fuse.
[25] The second complainant was in the process putting the first complainant to bed and giving her medication when the lights went out. She completed this and then made her way back to the kitchen by the light of a torch. By this stage Mr Hereora had entered the house through an insecure ranchslider door. He was armed with a knife or some other form of sharp weapon. He hid behind a cabinet and, as the second complainant walked towards the kitchen, he jumped out and pushed a wet towel into her head and face before grabbing her arms. He also held the weapon he was carrying against the second complainant’s neck. This left her with several small cuts and grazes to the neck.
[26] The second complainant managed to pacify Mr Hereora and led him to a nearby couch, where they talked for some time. During this conversation, Mr Hereora told the second complainant his name and other details about himself. He also told her he had lit a fire earlier in the evening. When Mr Hereora attempted to
kiss the second complainant and to put his tongue in her mouth, she refused his advances.
[27] Mr Hereora then grabbed and dragged the second complainant through the kitchen to an outside porch area. There he pushed her against a wall and then onto the ground. He proceeded to remove her clothing, including her underwear.
[28] Mr Hereora then placed a cushion over the second complainant’s face with sufficient force that she found it hard to breathe. When she attempted to use her hands in an effort to push him away, he punched her in the body.
[29] Mr Hereora then began to rub his penis around the second complainant’s vaginal area. At some stage during these events his penis penetrated the second complainant’s vagina. He continued to assault and rape her until he ejaculated in her genital area.
[30] The second complainant then put her clothes back on and went back inside the house with Mr Hereora. She made him a sandwich and endeavoured to keep him calm. Eventually he left the house and the second complainant locked the doors and had a shower. Before she had a chance to call the police, the second complainant heard Mr Hereora coming back into the house. She then hid in the darkness in the corner of her bedroom, because she feared Mr Hereora may want to harm her or kill her.
[31] When Mr Hereora could not find the second complainant, he went into the next bedroom in which the first complainant was asleep. He then removed her bed clothing and her undergarment. He also pressed a pillow against her face in the same way as he had done to the second complainant. After being in the bedroom for approximately five minutes, Mr Hereora came out and went into the second complainant’s bedroom. He told the second complainant that he had just killed the lady in the next room.
[32] Mr Hereora then began searching for keys to one of the cars at the address. He took several items of property from the house and loaded these into a vehicle in
the garage. He became angry when the second complainant was unable to provide him with the keys to that vehicle. He placed his hands around her throat, choking her briefly. The second complainant then managed to locate the keys to a vehicle belonging to the first complainant’s daughter. Mr Hereora placed his belongings in this vehicle and then drove away from the address. By this stage it was just before 2 am. Four hours had elapsed since Mr Hereora had first entered the address.
[33] The second complainant immediately called the police and told them what had happened. She also gave the police the registration number of the vehicle Mr Hereora had taken from the house, as well as Mr Hereora’s first name.
The second aggravated burglary
[34] Mr Hereora drove the stolen vehicle back to the address where he had left his bags earlier the previous evening. He parked the vehicle in front of the address and walked to the rear of the property. He then entered the lounge of the address through an unlocked ranchslider door whilst armed with a knife.
[35] The occupant of the address was asleep on the couch when Mr Hereora entered. Mr Hereora looked around the lounge and then picked up the occupant’s wallet and cellphone from a coffee table. At that point a passing police patrol car observed the stolen vehicle parked outside the address. A police dog handler from the patrol vehicle called for backup and then went to the ranchslider door through which Mr Hereora had entered the address. The constable was able to see Mr Hereora inside the house. When Mr Hereora saw the constable, he advanced towards him wielding his knife. Mr Hereora then locked the ranchslider door.
[36] At about this time, the occupant of the address woke up and Mr Hereora approached him with the knife. Mr Hereora demanded to know where his bags were. When the constable saw Mr Hereora approach the occupant of the address he immediately smashed the glass in the ranchslider door. He then released his police dog, who overpowered Mr Hereora. Mr Hereora dropped the knife, and was arrested by the police.
[37] The police later interviewed Mr Hereora at the police station. He told them that he had been at the first and second complainants’ address, and said he had borrowed a vehicle from them. He denied going inside the house or committing any sexual offences. He said that the female occupier of the address was already upset when he got there, and that he had disturbed another burglar. He acknowledged that the power was off at the address when he went there, and said that this must have been because the occupants of the address had not paid their power bill. He declined to make any comment relating to the other offending.
[38] As a result of these assaults, the second complainant suffered abrasions to her forehead, upper lip, neck, upper chest, breasts, left forearm, abdomen and back. She also suffered lacerations to her right ring finger and the base of the right thumb. She suffered bruising to her left upper arm and right breast, together with tenderness to her right lower back.
Sentencing approach
[39] I take the lead, or most serious, charge as being that of sexual violation by rape. That charge carries a maximum sentence of 20 years imprisonment. The charge also encompasses Mr Hereora’s culpability in relation to the first charge of aggravated burglary. Although the other offending occurred at slightly different times and at different places, I consider that all of the charges arise out of a closely connected series of events.2 For that reason I propose to adopt a starting point on the rape charge, and to increase that starting point to reflect Mr Hereora’s culpability in relation to the remaining charges.
[40] I will then apply discounts in respect of relevant mitigating factors before considering the issue of totality once I have reached the end sentence.
2 Sentencing Act 2002, s 84(2).
Starting points
Sexual violation by rape
[41] This offending involved numerous aggravating factors. They include the fact that it occurred late at night and in circumstances where Mr Hereora had entered a residential address uninvited. It involved considerable premeditation given the fact that Mr Hereora took the precaution of cutting the power supply to the house and arming himself with a weapon. The victim of the offending can also be viewed as vulnerable, and the offending continued for a considerable period time. The victim suffered moderate physical injuries, and has also suffered very substantial emotional and psychological harm as a result of the offending.
[42] The Crown submits that the offending falls at the very upper end of band 2 identified in R v AM.3 Counsel for Mr Hereora agrees. Both counsel submit that a starting point of around ten to 11 years imprisonment is warranted in respect of the rape charge.
[43] Having regard to the cases referred to by counsel and the aggravating factors of this offending, I select a starting point of 11 years imprisonment on the charges of rape and aggravated burglary.4
Indecent assault
[44] An uplift clearly needs to be added to reflect the seriousness of the offending against the 89 year old victim. This victim was extremely vulnerable and suffered the indignity of having her underwear removed in her own bedroom. The offending also occurred in circumstances where Mr Hereora had broken into the address in the middle of the night.
[45] Taking these factors into consideration, I consider the indecent assault warrants an uplift of two and a half years imprisonment.
3 R v AM [2010] 2 NZLR 750 (CA).
4 R v Funaki [2015] NZHC 1658; R v Olver [2012] NZHC 706.
Arson
[46] The aggravating factors relating to this offending are that it resulted in significant damage, and placed the occupants of the house in physical danger because they were asleep in the adjoining house when the fire was lit. Having regard to the cases referred to me by the Crown, I apply an uplift of three years imprisonment in respect of the arson charge.5
Aggravated burglary
[47] The aggravated burglary of the house where Mr Hereora had left his bags the previous evening must have been traumatic for the occupant. He was woken in the early hours of the morning by an intruder wielding a knife. He also found himself trapped inside his own home once Mr Hereora locked the ranchslider to keep the police out. The offending also contains the inherent characteristic that Mr Hereora was armed with a knife when he entered the address.
[48] Having regard to those factors, I apply an uplift of two and a half years imprisonment in respect of the second charge of aggravated burglary.
End starting point
[49] This brings the total starting point to 19 years imprisonment before taking into account mitigating factors.
Mitigating factors
[50] Counsel for Mr Hereora seeks discounts in respect of three mitigating factors.
These are Mr Hereora’s previous good character, the fact that he may suffer from
mental health issues and the discount to be given for guilty pleas.
5 Erickson v R [2012] NZCA 449; R v Golding CA329/96, 17 October 1996; R v Gordon
CA124/91, 17 July 1991; Howarth v R [2010] NZCA 523.
Previous good character
[51] Mr Hereora is 61 years of age. His only previous conviction relates to a charge of operating a vehicle carelessly in December 1995. I accept the submission for both the Crown and defence that Mr Hereora is entitled to credit for his previous good character. I propose to apply a discount of 18 months to reflect this factor.
Mental health issues
[52] Mr Hereora was clearly acting in a bizarre manner on the evening in which the offending occurred. When he left the address where he had set fire to the garage he was seen by neighbours to be walking down the street talking and laughing to himself. His actions on the night in question were also without rhyme or reason. For this reason Mr Hereora’s counsel has gone to considerable pains to obtain advice as to Mr Hereora’s mental state both currently and at the time of the offending.
[53] The conclusion I reach from this material is that it is virtually certain that Mr Hereora was suffering from mental health issues at the time of the offending. I am also satisfied that these were caused by his regular and substantial consumption of cannabis during the period leading up to the offending. Mr Hereora is now restored to normal mental health and I consider that this is due entirely to the fact that he has been abstinent from cannabis whilst in prison on remand.
[54] Under s 9(2)(e) of the Sentencing Act 2002, the Court may take into account as a mitigating factor the fact that at the time of the offending the defendant had diminished intellectual capacity or understanding. Relevantly for present purposes, however, s 9(3) prohibits the Court from taking into account by way of mitigation the fact that at the time of committing the offence the defendant was affected by the voluntary consumption of drugs and alcohol.
[55] I am satisfied beyond reasonable doubt that the mental health issues from which Mr Hereora suffered at the time of the offending were brought about by the consumption of cannabis. I reach that conclusion even though I accept there is a possibility that he might be vulnerable to those issues by virtue of his underlying genetic makeup. There is a history within his family of psychotic behaviour. The
prospect that this may have rendered Mr Hereora vulnerable is a factor I can take into account but it warrants a modest discount only. I apply a discount of six months to reflect it.
Guilty pleas
[56] Mr Hereora is due to stand trial in just three weeks time. Ordinarily, he would receive little discount for guilty pleas entered at such a late stage. The Crown accepts, however, that the discount should be appropriately reflect the fact that the complainants will not be required to give evidence and the State will be saved the cost of a trial. The Crown suggests that a discount of up to 20 per cent might be available to reflect guilty pleas entered at this stage.
[57] I do not consider a discount of 20 per cent would be appropriate. Mr Hereora had no prospect of defending the charges. He was caught red-handed in the property where he had earlier left his bags. The vehicle he had stolen from the first and second complainants’ address was parked outside that address. He had also given his name to the second complainant. I therefore consider that conviction on all charges was virtually inevitable. For that reason, and given the late stage at which pleas would be entered, I am prepared to allow a discount of 15 per cent, or two years six months, to reflect guilty pleas.
Totality
[58] This brings me to consider the issue of totality. Although I have not imposed cumulative sentences the uplifts to be applied in respect of different types of offending requires me to ensure that the end sentence of 14 years six months imprisonment is not wholly out of proportion to the gravity of the overall offending.6
Viewing the offending in its entirety, however, I do not consider that a sentence of
that length is wholly out of proportion to the overall gravity of the offending. This case involves very serious offending against three separate sets of complainants. It has caused substantial physical and emotional damage. I therefore consider an end sentence of 14 years six months imprisonment to be proportionate to Mr Hereora’s
overall culpability. For that reason I decline to make any adjustment to the sentence to reflect totality principles.
Minimum term of imprisonment
[59] Ordinarily, offending of this seriousness would warrant the imposition of a minimum term of imprisonment. As matters stand, Mr Hereora will be eligible for release after serving less than five years of his sentence. That could ordinarily be seen to be manifestly inadequate to reflect matters of deterrence, denunciation, the need to hold Mr Hereora accountable and the need to protect the public.7
[60] The Crown does not, however, seek a minimum term of imprisonment. In my view that is a generous approach. It can only be justified by the fact that guilty pleas at this stage would reflect Mr Hereora’s acceptance of responsibility for the offending. The fact that he has no relevant previous convictions may also mean that, provided he refrains from consuming cannabis in the future, principles of deterrence and the need to protect the community are of lesser significance in the present case than they might otherwise be.
[61] For that reason I am prepared to accept the Crown’s submission that a minimum term of imprisonment should not be imposed in this case. Mr Hereora needs to realise, however, that a trial Judge who hears all the facts may well take a different view.
Sentence indication
[62] The indicated sentence is a sentence of 14 years six months imprisonment on the lead charge of sexual violation by rape. Concurrent sentences of imprisonment would be imposed on all other charges. Concurrent sentences of two years imprisonment would be imposed on the charges of aggravated burglary and indecent assault. A concurrent sentence of two and a half years imprisonment would be
imposed on the charge of arson.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau
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