R v Keepa

[2019] NZHC 3042

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-096-2542

[2019] NZHC 3042

THE QUEEN

v

JAKE BOU-DINE KEEPA

Appearances:

P K Feltham for the Crown

S Thistoll and A C M R Jeffares for Mr Keepa

Sentencing:

20 November 2019

SENTENCING REMARKS OF GRICE J

Background1

[1]    Mr Keepa, you were disqualified from driving for six months on 8 August 2018 by the District Court. You were also monitored via a radio frequency bracelet while on a community detention curfew. This meant you were not allowed to leave your address from the hours of 7.00 pm to 7.00 am.

[2]    On Friday, 14 September 2018 you were at your home address in Lower Hutt. An associate of yours, Mr Pay, came to your address at about 7.40 pm. He has been known to you for a number of years and you are both members of the Mongrel Mob.

[3]    Mr Pay told you that he had been beaten up and his property had been taken. He had cuts to his arms and he was bloody and bruised. It was clear he had been in a

1      This sentencing was delivered orally on 20 November 2019. The written form has been edited and footnoted before distribution.

R v KEEPA [2019] NZHC 3042 [20 November 2019]

fight. Mr Pay, in fact, had just fatally stabbed the victim in this case and he had been stabbed in the chest. Mr Pay had walked to your house for help.

[4]    You and Mr Pay both got into a car which was parked outside your house. That car was in fact your fathers. You drove Mr Pay down to the scene of the stabbing and you were on a grass berm near where Mr Fonoilaepa lay. You spoke to several people who had stopped nearby to offer assistance to the victim. You demanded your “bro’s patch”. You remained there only for a short while before driving away from the scene.

[5]    A few minutes later you returned to the scene for a second time. You again pulled up near the victim who was being aided by a member of the public. You asked a member of the public “where is the bro’s patch” again and that “he has been beaten up”. The member of the public told you that the victim was dead. This appears to have been the first moment you knew that he had died. After hearing this, you drove home.

[6]    A short time later you drove Mr Pay back to the scene, this time pulling up near where the fight began. You waited for Mr Pay while he got out of the car and retrieved items that had been dropped during the fight. While this was happening police began to arrive on the scene.

[7]    The first police car arrived and parked across the road from you with its lights flashing. When you saw the car, you yelled “Let’s go, let’s go, let’s go” to Mr Pay. The officer began to walk toward your car and yelled at you both to stop. Mr Pay got back into the car and you accelerated away up the street. The officer was only metres from you at the time. Your actions, in driving away in this manner, allowed Mr Pay to avoid arrest at the scene.

[8]    As you and Mr Pay drove away, Mr Pay began to dispose of items he had used in the offence. This included the knife he had used to fatally stab the victim. You then dropped Mr Pay off before quickly parking your car at an address not known to you and then you ran off, hopped through properties, and got back to your home.

[9]    In total, you were absent from that address for about a total of 10 minutes according to the information from the radio bracelet.

[10]   When asked about what had occurred Mr Keepa, you told the police you had not left your house on the night in question.  You  agreed, however, you had seen   Mr Pay outside for about 10 seconds. You told the police you had given your keys to an unknown person who drove Mr Pay away.

Starting point

[11]The lead charge here is clearly the accessory after the fact of murder.

[12]   I begin by noting that any case in which assistance given to a principal offender after a homicide must denote the purposes of deterrence and denunciation. In the High Court decision of R v Duff, Lang J said “[people] must know that if they harbour or assist fugitives they are likely to be dealt with severely if caught.”2 Having said this, a sentence must be imposed that is consistent with other sentences in similar contexts.

[13]   There is no tariff decision for cases involving accessory after the fact to murder, but the High Court in R v Duff set out a useful continuum of murder accessory offending:

[11]  … As counsel for the Crown pointed out during his submissions, the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive. I accept the Crown’s submission that your offending falls somewhere in the middle.

[14]   In R v Boskell Gendall J helpfully set out a table of sentencing decisions which included relevant factors and results.3 That decision provides a useful compilation of decisions on the topic. I bear those in mind when considering the following factors which are relevant in your case:

2      R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010 at [8].

3      R v Boskell [2015] NZHC 286, appendix B.

(a)First, you provided assistance in three ways: by driving Mr Pay to the scene of the crime to search for the relevant items, by helping Mr Pay escape from the police at the scene and so helping him avoid detection for several days, and enabling him to dispose of incriminating items, which appear to include the murder weapon, while you drove away.4

(b)The assistance you provided can be seen as comparatively limited, although you did enable Mr Pay to evade the police and also to dispose of incriminating evidence. You helped him search for his items at the scene of the offence by asking members of the public on two occasions where his patch was. You also acted as a lookout, waiting in the car and alerting Mr Pay to the presence of the police when they arrived.

(c)Your aid was of significance to Mr Pay. You enabled him to evade the police for several days when he might otherwise have been arrested at the scene. By driving him away you allowed him to dispose of incriminating items and of particular importance is the fact that the murder weapon disposed of was never found.5

(d)You returned to the scene three times. This indicates some measure of premeditation. I agree with your counsel that the first time you drove to the scene your actions might have been as impulsive, but your return to the scene on two further occasions indicates you were thinking about what you were doing and there was an extent of premeditation.

(e)Your help to Mr Pay in order that he evaded the police is particularly serious. The police had told you to stop when you drove Mr Pay away from the scene. I note counsel has pointed out that you only drove a short distance – not to the airport as is the situation in some of the cases. Nevertheless, it was certainly far enough to evade the police and enable Mr Pay to get away.

4 At [13].

5      R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007 at [10].

[15]   Those actions occurred over a relatively short time frame of 10 minutes. It is also clear Mr Keepa that you did not know that the victim had died when you first agreed to help Mr Pay. However, by the time the police arrived you certainly did know.

[16]   Your counsel seeks a starting point of nine to 10 months’ imprisonment based on similar cases.6  The  Crown, on the other hand, seeks  a  starting point  of 15 to   18 months’ imprisonment which it says is appropriate on their proffered case law.7 I am of the opinion that something between those ranges is appropriate.

[17]   Your offending falls somewhere in between the suggestions of those counsel. Your offending is more serious than in R v Boskell and R v Afamasaga.

[18]   In R v Boskell the defendant’s role was limited to driving to the scene, away from the scene and avoiding the police during a police chase. The defendant was also present when the evidence was disposed of.8 The starting point taken there was ten months’ imprisonment.

[19]   In R v Afamasaga the first defendant drove to the scene of the murder in an unrelated pre-planned trip but then drove the murder accused away from the scene knowing about the shooting to help the accused avoid detection. He also asked a second co-defendant to hide some drugs and made up alibis for a number of the offenders involved. The Judge found these actions were self-motivated of self- interested and a starting point of nine months’ imprisonment was taken.9

[20]   Your actions do not suggest self-interest, well, not directly on the material I have. You put yourself at great risk to help Mr Pay by driving back to the scene repeatedly, even after discovering the victim was dead. You also engaged more actively in the search for items at the scene than did the defendants in the above cases that I have mentioned. You asked members of the public where Mr Pay’s patch was

6      R v Boskell, above n 3; R v Afamasaga [2014] NZHC 2142.

7      R v Graham HC Christchurch CRI-2004-009-2224, 14 September 2004; R v Moala HC Auckland CRI-2006-092-461, 12 December 2007; R v Tavita HC Auckland CRI-2009-092-5263, 15 September 2009; R v Ovalau HC Auckland CRI-2006-092-10484, 13 March 2007.

8      R v Boskell, above n 3.

9      R v Afamasaga, above n 6, at [73].

twice. You acted as a look out for Mr Pay when he searched the area for his belongings, yelling at him when the police arrived. You then helped him avoid arrest despite the officers telling you to stop. Finally, because you helped Mr Pay get away he was able to dispose of the murder weapon which was never found. It displays a persistent course of conduct designed to protect Mr Pay both from arrest both in physical terms and also in enabling him to clean out the evidence including the likely murder weapon. This is beyond the actions outlined in the cases that I have referred to.

[21]For this reason, a starting point of 14 months is appropriate in the present case.

Adjustments to the starting point

Aggravating factors

[22]   Mr Keepa, you have a limited criminal history with only four convictions, the most relevant of which is driving while on a suspended or revoked licence. The Crown accept, and I agree, that no uplift for this is justified.

[23]   You were, however, serving a sentence of community work for driving while suspended when the present offending occurred. The sentences that were breached had only been imposed five weeks before the present offending. I note you drove while disqualified. I agree with counsel that an uplift of one month will be appropriate to recognise these matters. I will deal with disqualification further on in my decision.

[24]No other aggravating factors have been identified.

Mitigating factors

[25]   I accept the submissions of your counsel and the Crown that a discount  of  25 per cent is appropriate for your guilty plea, despite its apparent lateness. This is because Mr Pay has only recently been convicted of murder. Had he not been found guilty of murder on the basis of self-defence (which was what he argued) then the charge against you could not have stood.

[26]   No other mitigating factors have been identified therefore none will be taken into account by me.

Personal circumstances

[27]   Mr Keepa, you are 27 years of age. Your counsel tells me you have been working as a labourer on Housing Corporation properties but that you will be unable to return to this work for a period if you plead guilty or are convicted as there is a stand-down period before you are able to do contract work for the Government again.

[28]   I am told that when you are released you intend to return to your family home and you want to care for your father who suffered from a brain aneurysm three years ago.

Disqualification

[29]   There is a mandatory period of six months’ disqualification that applies on a conviction of driving while disqualified.10

[30]   I conclude that the mandatory period is appropriate. However, counsel seeks the commencement date or the start date for the disqualification be back dated under s 85 of the Land Transport Act 1998. That provides when an order is made disqualifying a person from holding or obtaining a driver license, the period of disqualification starts on the day that the order is made unless the Court otherwise directs.11

[31]   The Court has an absolute discretion in relation to whether it directs a different start date, than the date on which the order is made. In that respect both counsel have referred me to a number of decisions which indicate that the Court’s discretion in that regard is unfettered. Those decisions include Police v Smith, Oldfield v Police and Edwards v Police.12

10     Land Transport Act 1998, s 32(3)(b).

11     Section s 85(1).

12     Police v Smith [2012] NZHC 2346, [2012] NZAR 965; Oldfield v Police [2013] NZHC 3206;

Edwards v Police [2012] NZHC 1350.

[32]   In this case your counsel submits that you were on EM-bail which had strict conditions and which effectively gave rise to a period of disqualification. Your counsel submits that the EM bail period should be taken into account. The Crown agrees that the relevant period of two months should be taken into account when considering the start date for disqualification.

[33]   Both counsel agreed that the start date to the “disqualification” period account should be backdated to 20 September 2019. Accordingly, I exercise my discretion in these circumstances to direct that the period of disqualification starts on that date. The effect is that you have around four months left as a disqualified driver from the present date.

End sentence

[34]   To reach the end sentence I take account of the discount for the guilty plea and the adjustment for the uplift. That results in an end sentence of 11 months’ imprisonment in the round. Six-month disqualification from driving is imposed but it is backdated to commence on 20 September 2019.

Release conditions

[35]   I also note I received submissions in relation to your release conditions. Your counsel and the Crown were in agreement as to the fact that there should not be any imposition of release conditions on you.

[36]   The Court may, under s 93 of the Sentencing Act 2002, direct that the defendant be released on standard or special conditions where a sentence is imposed for a period imprisonment for 12 months or less. Your counsel indicated that no conditions were necessary. Ms Jeffares, for you, pointed out that you intend to return to the family home and to begin looking for employment. The Crown agrees in those circumstances conditions are not appropriate.

[37]   If conditions are imposed they must be tailored to the specific offending in line with the purposes of the Sentencing Act. Given the situation and the Crown’s consent in this case and based on your counsel’s submission there is nothing to suggest that

the conditions would either be necessary, nor would assist in achieving the statutory purposes. Therefore, I do not intend to impose any release conditions.

Sentence

[38]Mr Keepa you may now stand. I sentence you to:

(a)11 months’ imprisonment on the lead charge of being an accessory after the fact to murder; and

(b)six months’ disqualification on the charge of driving while disqualified with a start date being 20 September 2019 together with one months’ imprisonment on that charge to run concurrently with the 11 months imprisonment.

Grice J