R v Kepu (Disputed Facts) HC Hamilton CRI 2010-019-4803

[2010] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-4803

THE QUEEN

v

LATU SAVELIO HALANGINGIE KEPU

Hearing:         16 and 17 September 2010

Counsel:         M N Sturm for Crown

M J Robb for Prisoner

Judgment:      17 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton 3244
Counsel:

M J Robb, PO Box 58, Hamilton 3240

R V KEPU HC HAM CRI 2010-019-4803  17 September 2010

A disputed fact hearing

[1]      On Saturday 15 May 2010, Mr Kepu was a prisoner at Springhill Corrections Facility, near Te Kauwhata.  At about 1pm that day, in circumstances I shall describe later, he punched a prison officer, Mr Palmer.  Mr Palmer fell to the ground and hit his head on concrete pavement.  Sadly, as a result of serious brain injuries caused by the fall, he subsequently died.

[2]      Mr Kepu has pleaded guilty to one count of manslaughter.  When he came up for sentence before Rodney Hansen J about two weeks ago, it became clear there were disputes between the Crown and the prisoner on issues relevant to sentencing. The first was whether the assault on the prison officer was premeditated.  The second was whether remorse subsequently expressed by Mr Kepu for his actions was genuine.   The former is relevant to the assessment of aggravating factors to the offence, whereas the latter relates to the evaluation of mitigating factors.

[3]      The Crown accepts that it bears the onus of proving premeditation, beyond reasonable  doubt,  if  it  were  to  be  treated  as  an  aggravating  fact  on  sentence.[1]

Similarly, the prisoner acknowledges that, because the mitigating factor is not related to the offending, he has the onus of establishing the mitigating factor, on a balance of probabilities.[2]

[1] Sentencing Act 2002, s 24(2)(c).

[2] Ibid, s 24(2)(d).

[4]      Yesterday afternoon I heard evidence from a number of witnesses, including prison officers and the prisoner.  I indicated I would give my decision this morning on the disputed fact issues so that I could sentence  Mr Kepu this afternoon.  I deal with the two issues raised in turn.

Premeditation

[5]      At the time of Mr Palmer’s death, Mr Kepu was serving a custodial sentence of two years and eight months imprisonment imposed by the District Court on 27

August 2009.[3]   On that occasion, Mr Kepu was before that Court for sentence on 14 charges arising out of incidents that had occurred between 16 December 2007 and 16

November 2008.   The charges to which Mr Kepu pleaded guilty on that occasion included one of assaulting a police officer with intent to injure and one of assaulting a pregnant woman.

[3] R v Kepu DC Auckland CRI 2008-004-27776, 27 August 2009 (Judge Treston).

[6]      Mr Palmer had been the prison officer primarily responsible for Mr Kepu’s supervision.  On Saturday 15 May 2010, Mr Palmer was working a shift from 8am until 5pm.  Mr Kepu was segregated from other prisoners, on  a 23 hour lockdown. That meant he was entitled only to one hour of exercise per day and that was to occur while all other prisoners in his Unit were in their cells.

[7]      Mr  Kepu  had  been  segregated  because  his  security  status  had  been reconsidered the day before, on Friday 14 May 2010.   As a result of alleged misconduct, Mr Kepu had been upgraded from “high risk” to “maximum security” by the Principal Corrections Officer at Springhill.  Arrangements had been made to transport Mr Kepu to Paremoremo Prison on Monday 17 May 2010.

[8]      By the time Mr Kepu was served breakfast on the Saturday morning, he had not been told why he had been segregated from other prisoners.  I accept that he had become agitated about being locked up alone.

[9]      At about 8.30am that day, Mr Chand, a prison officer, delivered breakfast to Mr Kepu’s cell, accompanied by another officer, Mr Hinton.  Although not engaged in the delivery of the breakfast, Mr Palmer was in the vicinity of Mr Kepu’s cell at that  time.    It  is  common  ground  that  Mr  Kepu  asked  why he  was  segregated. Evidence diverges at that point.

[10]     Mr Kepu says that Mr Palmer gave an answer that he did not hear and when he asked Mr Palmer again he swore at him, saying that he had already told him the answer to his question.  Mr Kepu says that Mr Palmer then walked away, pretending he could not hear further questions from Mr Kepu.   Mr Kepu expressed concern

about the way Mr Palmer spoke to him and what he described as a “smirk” on his face as he walked away.

[11]     Mr Kepu’s version of events was not supported by the other two prison guards present when this conversation took place.   Mr Chand recalled Mr Palmer saying something to the effect that Mr Kepu had been reclassified.  He indicated that Mr Kepu said something like “yeah, it’s okay”.

[12]     Mr Hinton’s evidence was not entirely clear about what happened at that stage.   Later in his evidence in chief, however, Mr Hinton suggested that he had heard Mr Kepu that morning and on earlier occasions threaten Mr Palmer and call him names.  In particular, Mr Hinton suggested that Mr Kepu had said he would like “to get” Mr Palmer, or words to that effect.

[13]     I  consider  it  is  likely  that  Mr  Kepu  did  make  some  comments  about Mr Palmer that were both derogatory and threatening.  However, I am not satisfied beyond reasonable doubt that any threats that may have been made were intended to be taken seriously.   Had serious threats of the type described by Mr Hinton been made previously, I have no doubt that more stringent security measures would have been put into place to protect Mr Palmer’s safety and that of his fellow officers.

[14]     I am satisfied that Mr Kepu did not know, around 8.30am on the Saturday morning, the reason for his segregation.  I accept that he wanted to know what the reason was.    His inquiry of Mr Palmer is consistent with later intercom communications in which he asked for similar information.

[15]     I need not make any finding on the nature of the interaction between Mr Kepu and Mr Palmer around that time because I am satisfied beyond reasonable doubt that, that whatever occurred, Mr Kepu remained agitated about his status and brooded on it throughout the morning.

[16]     I  find  that  Mr  Kepu,  during  that  time,  formed  an  intention  to  assault

Mr Palmer at some time, believing that Mr Palmer was either responsible for the

position  in  which  he  found  himself  or  was  deliberately taunting  him  about  his predicament.

[17]     That finding is consistent with video surveillance evidence which was shown in Court.   The surveillance footage shows the three officers around the cell door when Mr Kepu exited for recreation purposes.  It is difficult to see the punch that was thrown but it must have been forceful, probably delivered as a short arm jab, in upper cut fashion, to Mr Palmer’s head.  If it had not been delivered in that way, it is difficult to understand how Mr Palmer jolted backwards and hit his head on the pavement in the manner shown in the surveillance footage.

[18]     I reject Mr Kepu’s explanation that he did not intend to assault Mr Palmer when he walked out of his cell.  Mr Kepu said that he only made a decision to hit Mr Palmer after he failed to apologise for having sworn at him earlier in the day. Mr Kepu said he “lost it”.

[19]     I do not accept that explanation.  It is inconsistent with the calm demeanour that Mr Kepu is said to have exhibited and the matter of fact way in which he spoke to other prison staff through the intercom, only about an hour and a half after the incident.

[20]     I limit my finding on premeditation to an intention on the part of Mr Kepu to strike Mr Palmer when the opportunity arose.  There is no suggestion that Mr Kepu had an intent to cause really serious harm to Mr Palmer or to kill him.  If he had had either of those intentions it is probable that Mr Kepu would have been charged with murder, rather than manslaughter.  The relevance of premeditation is to assessing the culpability inherent  in  the  punch  that  was  thrown  and  which  tragically,  caused Mr Palmer’s death.

Remorse

[21]     On the topic of remorse, Mr Kepu has written a letter to the Court expressing his sorrow and sadness for what has occurred and the loss suffered by members of

Mr Palmer’s family.   Mr Sturm, for the Crown, contests the genuineness of those statements of remorse.

[22]     It is important to put the letter of remorse into context.  There are three events to which I shall refer which, in my view, suggest the remorse expressed is not genuine.

[23]     First, when sentenced on the charges on which he is currently serving a prison sentence, Mr Kepu wrote a similar letter to the presiding District Court Judge. The Judge accepted the remorse expressed, describing it as having been put “eloquently”.  I agree with the propositions Mr Sturm put to Mr Kepu that he was well aware of the impact of a letter of this type on the sentence that might be imposed.  The absence of remorse is also supported by the fact that, despite having expressed similar sentiments for assaults of a similar character in respect of which he was sentenced less than one year before Mr Palmer’s death, did not cause him to refrain from assaulting Mr Palmer on the day in question.

[24]     The second event occurred on 17 May 2010 when Mr Kepu was escorted to the District Court at Hamilton to appear on a charge arising out of the death of Mr Palmer.   On that occasion Mr Kepu scratched onto the walls of a Court cell words indicating that he took Mr Palmer’s death lightly.   Derogatory comments about the police and prison officers were also made.

[25]     Mr Kepu seeks to explain away those comments on the basis that he was “pissed off” with prison officers who had handcuffed him to a belt around his waist, meaning that he could not use the toilet from the time he left Springhill at about 8am until  the  time  he  arrived  at  Paremoremo  at  around  6pm.    While  I can  readily understand Mr Kepu’s frustrations, it is clear that what he wrote on the prison wall was  deliberately  designed  to  be  offensive  and  to  mock  the  prison  officers’ colleague’s death.  Those actions are not consistent with genuine remorse.

[26]     In relation to the third event, Mr Kepu wrote to an associate in which he also made light of Mr Palmer’s death in a manner inconsistent with the expression of genuine remorse.  That letter was intercepted by prison authorities at Paremoremo.

[27]     I am not prepared to treat Mr Kepu’s expression of sorrow as the type of remorse that would attract an additional credit as a mitigating factor beyond that inherent in acceptance of responsibility for what occurred, through the entry of a guilty plea to the charge of manslaughter.

[28]     Put another way, I am not satisfied it is more probable than not that Mr Kepu is truly remorseful for his actions.

Conclusions

[29]     For the reasons  I have given,  I find that the  assault on Mr Palmer  was premeditated and that Mr Kepu does not have genuine remorse for what occurred.

[30]     Later today, I shall sentence Mr Kepu having regard to those two findings.  In the meantime, sentencing is adjourned.  When we resume, I shall hear supplementary oral  submissions  from  counsel  for  the  Crown  and  the  prisoner,  before  passing

sentence.

P R Heath J