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

[2010] NZHC 1630

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-4803

THE QUEEN

v

LATU SAVELIO HALANGINGIE KEPU

Hearing:         17 September 2010

Counsel:         M N Sturm for Crown

M J Robb for Prisoner

Sentence imposed:     Manslaughter (x1)

6 years and 4 months imprisonment

Minimum sentence: 4 years and 2 months imprisonment. Sentence to be served cumulatively on existing sentence of

2 years 8 months imprisonment

Judgment:      17 September 2010

SENTENCING NOTES 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 [16 September 2010]

Introduction

[1]      Latu Kepu, you appear for sentence today having pleaded guilty to one count of manslaughter.

[2]      You acknowledge that, on 15 May 2010, you hit a prison officer Mr Palmer, causing him to fall and to hit his head on concrete paving.  As a result of injuries sustained following that fall, Mr Palmer died.

[3]      You are now aged 22 years.  You have previously appeared before the Courts for violent offending.  Indeed, the offences for which you are serving your present term of imprisonment  included an  assault on  a police officer and  another on a woman who was pregnant at the time.

[4]      While  the  maximum  penalty  for  manslaughter  is  life  imprisonment,  the sentence I impose today must reflect the fact that there was no murderous intent.  So, while I must have regard to the need to mark offending that causes death, in light of the sanctity of life, the fact that you had no intent either to really serious harm or to kill Mr Palmer is relevant to the length of the sentence to be imposed.

General comments

[5]      There are three things I wish to say at the outset, by way of general comment. Those comments are directed more generally at the families who are here today and on whose behalf I have heard addresses.

[6]      First, may I express my condolences to members of the Palmer family particularly to his widow and children for their tragic loss.  I can only imagine the real effect it has had on all of you despite the victim impact statements I have heard read today and those which I have read myself.   I thank you, Mr Church, for the dignified way in which you conducted yourself in presenting those statements to the Court.

[7]      Any sentence I impose today will undoubtedly be regarded by you as too short.  I am obliged to impose a sentence that responds adequately to the offending within  the  legal  guidelines  I  must  apply.    I  must  do  so  from  a  community perspective, taking account of your views, but it must also be consistent with other sentences imposed in like cases.

[8]      Nothing I do today can bring back your loved one.

[9]      Second, to members of the Kepu family.  I accept the heartfelt feelings that have been expressed by the prisoner’s mother, Mrs Kepu today, to the Court and to the Palmer family and the dignified way in which they too were presented by you, Mrs Kepu.   But I have already found there is no genuine remorse on the part of Mr Kepu that entitles him to a greater credit than is appropriate for the early guilty plea he has entered.

[10]     I am sure you will go away today thinking the sentence I impose is too long and too harsh.

[11]     Third,  more  generally,  my task  is  to  hold  Mr  Kepu  accountable  for  his actions, to denounce his offending and to deter others from assaulting prison officers in this way.  Prison officers form part of the criminal justice system in this country and as such are entitled to just as much protection from the Courts as a police officer who is working on the streets.   They should not be made the victims of violent assaults like the one that happened in this case.

Counsel’s submissions

[12]     Mr Sturm, for the Crown, has submitted that I should take a starting point in the range of 10½ years imprisonment.   While acknowledging your early plea of guilty, he submits that your lack of genuine remorse means that you should not be entitled to the full reduction of one-third that would ordinarily be available.[1]

[1] Hessell v R [2010] 2 NZLR 298 (CA) at paras [24]-[28].

[13]     In reaching that starting point Mr Sturm has identified six factors in relation to the offending:

a)        The use of actual violence,

b)Commission of the offence while you were subject to a sentence of imprisonment,

c)        The loss caused to the victim’s family and friends; in particular, his widow and his two young children,

d)The premeditation of the assault; you have already heard today my views on that,

e)        Your previous convictions for violent offending

[14]     Finally, Mr Sturm echoed the comment I have already made that there is a need for Courts to deter attacks against serving prison officers who are employed in a high risk environment where they are required to deal on a daily basis with violent offenders.

[15]     Mr Sturm has also submitted that a minimum term of imprisonment should be imposed to ensure that your conduct is adequately denounced, that you are held accountable for the harm done by your actions, to deter you or others in a similar position from committing similar offences in the future and to protect the community from you.[2]

[2] Sentencing Act 2002, s 86 and R v Brown [2002] 3 NZLR 670 (CA) at paras [35] and [36].

[16]     Mr Sturm submits that the sentence imposed should be cumulative upon the term you are presently serving.

[17]     Mr Robb, on your behalf, has said everything that could possibly be said responsibly in relation to your position.

[18]     He submits that you should be regarded as an “immature” but not generally “overly difficult prisoner” to manage.   While he submitted that your letter to the Court expressed genuine remorse, I have already found that not to be the case. Nevertheless, Mr Robb has submitted, and I accept, that you are entitled to a significant credit for your early guilty plea.

[19]     Mr  Robb  has  also  referred  me  to  comparator  cases  in  which  death  has resulted from a single punch.  He has submitted that that offending ordinarily attracts a much lesser starting point than that for which Mr Sturm contends.[3]

Purposes and principles of sentencing

[3] R v Cassidy HC New Plymouth T/03, 10 July 2003, R v Paku HC Hamilton, CRI 2005-019-6408,

[20]     I have already explained the purposes I must bear in mind when sentencing you.    I add  one  additional  factor.    Parliament  requires  me  to  impose  the  least restrictive outcome appropriate to the circumstances.

Aggravating and mitigating factors

[21]     Mr Kepu, you have taken a human life.  That will remain with you for the rest of your life.  You will be accountable to a much higher authority than me in due course.

[22]     You have, by your actions, devastated the Palmer family in a manner that you have heard today from the victim impact statements that Mr Church read to the Court.  You have committed serious violent crimes in the past involving, as I have already said, assaults on a police officer and a pregnant woman.  You have not learnt from those experiences.

[23]     You are  a big,  strong  man.   You have a propensity for violence.    You punched a man, with premeditation, in a situation where he had no opportunity to

defend himself.  That was cowardly.

[24]     Death caused by a single punch are difficult cases on which to sentence. Nevertheless, there are a greater number of aggravating factors in your case, some relevant to the offence and others to you personally.

[25]     I regard the aggravating factors relevant to the offending as being the assault on a prison officer, an attack to his head, the attack at a time when he had no opportunity to defend himself, the commission of the offence while subject to a sentence of imprisonment.  The premeditation involved is also relevant.

[26]     In cases where there is simply a single punch to the head I accept that a starting point in the range of three to four years imprisonment would be taken.  For that part of the crime I take a starting point of three years six months.  However, a significant uplift is required to respond to the aggravating circumstances to which I have referred.  In my view, an uplift of four years is justified making the adjusted starting point seven years six months imprisonment.

[27]     There are also significant personal aggravating factors.  There is your prior violent offending.   The nature of that puts it in a very serious category.   On two occasions you have assaulted police officers and on this occasion you assaulted a prison officer causing his death.   The offending for which you are presently incarcerated involved a number of kicks to the head of the police officer.  I consider that an uplift of a further two years is justified, to reflect that prior offending.  That means I take a starting point before mitigating factors of nine years six months.

[28]     Apart from the guilty plea, the only possible mitigating factor relates to your age but you have had enough experience to know your responsibilities and to control your anger.  You have not done so.  No credit can be given for your age in those circumstances.

[29]     For an early guilty plea the law entitles you to a credit of one-third.   That equates to three years two months imprisonment; meaning that the end sentence will be one of six years four months imprisonment.  I understand fully the submission Mr

Sturm has made to me about reducing the credit available for the guilty plea but I

believe my hands are tied by the Court of Appeal decision by which I am bound.4

[30]     Based on that end sentence, I consider a minimum period of imprisonment is required to respond appropriately to the sentencing goals of denunciation, accountability and deterrence as well as to protect the community from you.  I fix a period representing about two-thirds, and round that to one of four years two months imprisonment.

Result

[31]     Mr Kepu, you are sentenced to a term of imprisonment of six years and four months imprisonment.  That sentence is cumulative on your existing sentence of two years eight months imprisonment and will begin at the conclusion of that sentence. In respect of the present sentence, I fix a minimum period of imprisonment of four years and two months.

[32]     Stand down please.

P R Heath J

4 Hessell v R [2010] 2 NZLR 298 (CA).

7 September 2006, R v Carmichael HC Tauranga CRI 2007-070-2603, 6 September 2007 and R v
Efeso HC Auckland CRI 2008-092-7925,24 October 2008.