R v Keremete
[2024] NZHC 817
•15 April 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-009-002787
[2024] NZHC 817
THE KING v
JUSTIN WIREMU KEREMETE
Hearing: 15 April 2024 Appearances:
S J Mallett for Crown
P H B Hall KC for Defendant
Sentencing remarks:
15 April 2024
SENTENCING REMARKS OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v KEREMETE [2024] NZHC 817 [15 April 2024]
Introduction
[1] Justin Wiremu Keremete, you appear for sentence, having pleaded guilty to five charges of aggravated robbery,1 a charge of aggravated burglary,2 a charge of unlawfully taking an e-bike3 and a charge of breaching release conditions.4 Those guilty pleas were entered on 17 May 2023.
[2] On 5 February 2024 the District Court declined jurisdiction and remanded you for sentence in this Court following the Crown’s indication that a sentence of preventive detention was sought.5
Offending summarised
[3]It is necessary that I summarise your offending.
[4] On the afternoon of 14 March 2023, you went to Electrify NZ, an electric bike shop in Lichfield Street in Christchurch. After engaging with staff, you asked to drive an e-bike having provided personal details and photographic identification. You left the store with an electric mountain bike valued at $11,499. You did not return the bike to the store. It has never been located.
[5] On 11:05 am on 25 March 2023, you committed the first of the five aggravated robberies. Travelling by bicycle you went to the premises of Paper Tree, a combined book shop, Kiwibank branch and NZ Post Shop on St Martins Road in Christchurch.
[6] On entering the store, you removed your bike helmet and hat, but left a face covering in place. You leant on the counter and presented what is described as a small pistol. You demanded money from the till, threatening you would fire the gun. You continued to threaten the teller and pulled out a small hatchet and advanced around to the staff side of the counter before returning to the customer side, at which stage the teller cooperated with your demands. The till was opened, and you told the teller to
1 Crimes Act 1961, s 235(c) — maximum penalty of 14 years’ imprisonment.
2 Section 232(1)(a) — maximum penalty of 14 years’ imprisonment.
3 Section 226(1) — maximum penalty of seven years’ imprisonment.
4 Parole Act 2002, s 71(1) — maximum penalty of one year imprisonment.
5 R v Keremete DC Christchurch CRI-2023-009-002787, 6 February 2024.
empty it and hand you the money. You walked around behind the counter and emptied the till. You left the store on your bike taking a total of $1,495.
[7] Four days later, on 29 March 2023, you went to Travelex, a currency exchange agency in the Westfield Mall in Riccarton, Christchurch. You approached the lone teller. You were asked what currency you were after and in response you said: “I need all the money”. The victim pushed the panic button, and you opened your jacket revealing a garden tool-like object and another unknown weapon tucked in your waistline. You reached over the counter and snatched money from the victim’s hands before departing on foot. You stole NZD 3,423.80, and AUD 1,110.
[8] On the evening of Saturday, 8 April 2023, you were at the Cashmere Club in Christchurch. You approached the victim, who was working behind the bar and demanded money. You handed her a bag and presented a small hatchet. When the victim refused to hand over money and gave the bag back to you, you tried to force it into her hands. You then walked around the bar and approached the victim, raising the hatchet high in an aggressive stance, telling the victim not to make a scene before you retrieved your bag and left. Because your demands were not met and you got nothing, that offending is reflected in the charge of aggravated burglary.
[9] On the morning of the following day, 9 April 2023, you went to the Metro Mart on Normans Road in Christchurch. You walked around the store and approached the counter after the victim appeared from the back room. You presented what was described as a small pistol and a plastic bag, demanding money and cigarettes, and threatening to shoot the victim if she did not comply. You produced a small hatchet and continued demanding money and cigarettes. The victim opened the tills and you emptied the contents into your plastic bag. You searched behind the counter, taking a bank envelope of money. You then demanded cigarettes and the victim opened a cabinet from which you took tobacco pouches and cigarette packets. You then rechecked the tills and drawers, walking into the back room before leaving through the front door. In total you took approximately $2,700 and several packages of cigarettes.
[10] The next day, 10 April 2023, you went to Fresh Choice Merivale Mall. You approached and then leaned into the Lotto counter holding a small pistol and a bag. You demanded cash from the till, telling the victim that you had a gun. You told another of the victims to get off her phone and not to call anyone. Once the till had been emptied, you walked around the counter, checking the drawers and cupboards around the till before leaving the supermarket through the front entrance. You took assorted notes and coins totalling $960.50.
[11] Finally, two days later on 12 April 2023, you were on High Street in Rangiora. You approached the entrance of the BNZ Bank, only to discover the doors were locked. You crossed the road and entered the ANZ Bank. You approached the teller, presenting the small pistol and a bag. You demanded cash. On seeing another staff member open the door to exit behind the tellers, you moved towards that door. You pushed past a female staff member, shoving her out of the way as you went behind the counter into the back room. You approached an open time locked safe and took money from inside. You then exited the back room, jumping over the counter, dropping cash as you did so. As the bank manager stepped in to try and stop you, you presented a hatchet as you ran to the door. You stole cash totalling $4,625.
[12] Mr Keremete, when spoken to by the police, you admitted the facts that I have outlined. You admitted that you had with you during these robberies, a small imitation gun-shaped lighter and a small homemade axe with you. You told police that you needed the money as your benefit had been cut off and you did not want to go back to jail. The prosecution accept that what was described by your victims as a small pistol was an imitation firearm.
Victim impact statements
[13] I considered five victim impact statements from those who you confronted when offending. It is not surprising that those statements paint a consistent picture. One of fear, a sense of helplessness, a loss of confidence in their workplace and significant distress and anxiety. Each of them speak to the ongoing distress they have suffered as a direct consequence of your actions. One did not feel safe to return to her employment.
[14] It is all very well for you to say that you would not have caused harm and that the firearm was not real. But, as you intended, the victims took your threats very seriously and did believe their lives were at risk. Your offending has had very serious consequences for a number of people.
Personal circumstances
[15] I now turn to your personal circumstances. You are aged 51. Your mother is European, and your father was Māori. You have little or no connection to your Māori culture. You were brought up in a strict home. Your parents’ marriage failed when you were aged 12. You struggled at high school and left part way through your sixth form year.
[16] In your childhood, you were exposed to and suffered abuse. From an early age you were binge drinking. As a young person you became a heavy user of cannabis. You have since become a user of methamphetamine. By your mid-twenties your family had moved away from Christchurch. Mr Hall tells me this morning that you have little or no support here in Christchurch beyond your partner.
[17] At age 26 and whilst serving a term of imprisonment, you became a member of the Black Power gang.
[18] Mr Keremete, you have a shocking history of criminal offending. On 18 September 2003, you were sentenced by William Young J to preventive detention with a minimum non-parole period of eight years following your guilty plea to nine charges of aggravated robbery, two charges of robbery, two charges of kidnapping, one charge of aggravated wounding and one charge of aggravated burglary. Four of those robberies bear strong factual similarities to the offending for which you are to be sentenced today.
[19] In relation to five of the robberies, you were armed with a shotgun and in relation to one, you struck a victim with the butt of the shotgun, inflicting an injury that required medical treatment. After learning you were wanted by the police, you committed the last of the nine armed robberies and you committed the kidnapping offences. You were armed with a shotgun and a knife, and in possession of rope. You
went to a private address. You made both the male and female occupants lie down. You then “hog-tied” both. You made comments indicating you intended to murder them. The incident ended when you forced the victims to drive to the police station where you gave yourself up. That was an incident that lasted about 18 hours; and there was an element of sexual impropriety disclosed.
[20] In imposing the sentence of preventive detention, William Young J summarised your offending to that point in your life. In 2003, the Judge observed that every year between 1991 and 1998 you had offended. In 1997, you had received a short prison sentence. Later that same year, you were sentenced to four years’ imprisonment and were paroled from that sentence in 1998.
[21] While on parole, you committed more offences, including four robberies for which you were sentenced to six years and eight months’ imprisonment. You were released on parole from that sentence in July 2002. You were non-compliant with your parole conditions. It was only six months after your release that you committed the offences for which you were then sentenced to preventive detention.
[22] William Young J noted that following your 1998 offending you handed yourself in and that you had also done so in relation to your 2003 offending. The Judge referred to your unhappy background that I have summarised. He assessed your risk of further offending in these terms:6
[26] The pattern of you offending does strike me as being ominous. There has been since the late 1990s a marked escalation in the seriousness of your offending. The pattern of your most recent offending is perfectly plain – in the first half of this year you were on a crime spree which culminated in the terrible events of 6 and 7 June. The robberies committed this year are similar to your conduct in 1998 but more serious because of the use of firearms and the incidents when you used violence. What is more, you appear to be a pretty successful robber. Both in 1998 and this year you were only caught because you gave yourself up.
[23]The Judge goes on to say:
[28] Predicting whether someone will offend again or not is not easy and perhaps the best if rather crude method of doing so is to look at the way that person has behaved in the past. I have taken into account what the
6 R v Keremete HC Christchurch CRI-2003-009-007263, 18 September 2003.
psychologist and psychiatrist have said. The psychiatrist did not explicitly address the risk of re-offending although the psychologist did. It is perfectly clear, however, from both reports that unless you address your tendency to substance abuse there is a major risk of re-offending.
[29] In that context your failure in the past to address the causes of your offending is significant. As I have said, you have not really engaged with rehabilitative programmes. I accept, of course, that I have to look forward and not just back. You are torn in two directions. As I have said twice already, you have a sense of right and wrong. You are I think quite an intelligent man and you experience shame. On the other hand, the abusive way you were treated as a child, your early substance abuse, a developing pattern of anti- social behaviour and your gang association are pulling you pretty strongly in the other direction. In that context I very much believe that, unless the right incentives are given, you are at high risk of re-offending in a serious way and I have no doubt that you recognise that too.
[24]Mr Keremete, those were the words of the Judge in 2003, some 20 years ago.
[25] You were released on parole in March 2013 after successfully completing the Matapuna Special Treatment Unit Rehabilitative Programme (STURP) and you began residing at the Salisbury Street Foundation.
[26] By 2014 you had been recalled to prison in the context of relapsing into drug use and stealing money. You were released back into the community on parole in 2016 and you lived then with relative stability until you committed the offences of wilful damage, assault and breach of conditions in 2020. Your last release on parole was in March 2022. You had been on parole for about a year when this latest spate of offending was committed.
[27] You have now spent very significant periods of your adult life in prison. Mr Hall tells me this morning that you calculate you have spent some 30 of the last 36 years behind bars. You describe yourself, not surprisingly, as institutionalised.
[28] It is of concern, Mr Keremete, that the pre-sentence report I have, describes your behaviour following your latest recall as demonstrating little ability to problem-solve without the use or threat of violence. The report tells me you have threatened to assault staff if moved from Christchurch Men’s Prison and that you have been involved in two incidents of assaults on other prisoners. You told the probation officer that you had “lost faith” in the agencies with which you had previously
connected and that you were aware you had burnt all your bridges as a result. You reported a sense of lost hope. You distinguish your latest offending from your previous spate of armed robberies because on the latest occasions you did not want to hurt anyone. You reported that you had planned to conclude your most recent spate of offending with “suicide by cop”. Not surprisingly the pre-sentence report assesses you as being a very high risk of re-offending and as presenting a very high risk of harm to the community.
Principles and purposes of sentencing
[29] In determining the appropriate sentence, I must consider the purposes and principles as they are outlined in the Sentencing Act 2002. In this case, the critical considerations are the need to denounce your offending and to hold you accountable for the harm you have caused. The sentence I impose is intended to promote in you a sense of responsibility for causing that harm. There must be a strong element of deterrence, although I acknowledge, having regard to previous sentences that have been imposed with deterrence in mind, that they have been largely ineffective. A most important consideration in this sentencing is the protection of the public.
[30] The sentence I impose on you must be consistent, both in kind and length with those who have offended in a similar way. I have regard to the overall gravity of your offending and your personal culpability.
Preventive detention or finite sentence
[31] So what should that sentence be? Mr Mallett on behalf of the Crown, submits that the appropriate sentence is one of preventive detention. He submits that sentence is appropriate notwithstanding that you are currently subject to a sentence of preventive detention. He submits the Court ought not be concerned with the practicalities of sentencing but should rather focus on ensuring the appropriate sentence to reflect this offending. Mr Hall on your behalf appropriately acknowledges that there is no jurisdictional barrier to the Court imposing a second sentence of preventive detention, but he submits that a sentence of preventive detention would serve no useful purpose. He says to impose that sentence would be unduly punitive on you given it would likely affect your classification within the prison.
[32] It is well-established that the Court has the power to impose a second concurrent sentence of preventive detention.7 The Court in T v R recognised that a second sentence of preventive detention might be imposed after an offender has committed a further qualifying offence after his or her release on parole from the first sentence.8 Relevantly in that case, the Court held:9
…the issue of whether or not to impose a second sentence of preventive detention must be determined on a principled basis. It cannot be driven solely by the practical utility of the sentence. As this Court noted in R v Mackrell, each offence requires the appropriate response even if it may have no practical effect where it is of a lesser (or equal) duration than another sentence. Subject to totality principles, the Court is required to fix the appropriate sentence for the offending in question irrespective of any other sentence that is imposed.
(footnotes omitted)
[33] Mr Keremete, I must consider whether to impose a second sentence of preventive detention on a principled basis regardless of the practical utility of such a sentence.
[34] There is no dispute that you meet the statutory criteria to be sentenced to preventive detention. You have been convicted of a qualifying offence, namely aggravated robbery, you were over the age of 18 at the time you committed that offence and because I am satisfied you are likely to commit another qualifying offence, namely aggravated robbery, if you are released at the sentence expiry date of any sentence that the Court would otherwise impose.
[35] In considering whether to impose a sentence of preventive detention, I am required to first consider the finite sentence I would impose if I was not imposing a sentence of preventive detention.
7 R v Howse [1963] NZLR 971 (CA) at 972; Mackrell v R (1998) 16 CRNZ 1 (CA) at 8-9, T (CA 43/2013) v R [2013] NZCA 497 at [23].
8 T v R, above n 8, at [24].
9 At [26].
[36] In fixing a finite sentence, I have regard to the aggravating factors of your offending. Those factors are not disputed by your counsel. They include:
(a)premeditation;
(b)targeting commercial premises during business hours when your potential gain was maximised and when victims would be present;
(c)you being armed with a weapon – an imitation pistol, a hatchet and a garden type tool;
(d)the use of threats, particularly the threats to shoot those you targeted; and
(e)the repeated nature of your offending.
[37] Both Mr Mallet for the Crown and Mr Hall on your behalf are agreed that, with application of the totality principle, an appropriate starting point for your offending is in the range of 11 to 12 years’ imprisonment. I must fix your starting point having regard to the guideline judgment for aggravated robbery offending, R v Mako.10 I am satisfied a sentence in the range proposed by counsel is consistent with the authorities I have considered.11
[38] Mr Mallet proposes an uplift to reflect the unlawful taking of a high value e-bike that has not been recovered. Mr Hall submits that is not necessary. In my view that offending is distinct and cannot be ignored in fixing the starting point. With the totality principle in mind, I would increase the starting point by about nine months to reflect that distinct offence.
[39] Overall, I consider an appropriate starting point for all of your offending for which you are for sentence today is one of 12 years’ imprisonment.
10 R v Mako [2000] 2 NZLR 170.
11 R v Collett CA83/04, 30 August 2004; R v Moke [2007] NZCA 110; R v Carr [2020] NZCA 357 and R v Thomson [2021] NZHC 2304.
[40] In my view your prior convictions necessitate an uplift to that starting point. Mr Hall contends an uplift is not necessary because the prior sentence of preventive detention is extant. I consider it necessary to fix the term of any finite sentence, independently of the extant sentence.
[41] You have nine previous convictions for aggravated robbery, two for robbery, two for kidnapping, one for aggravated wounding and one for aggravated burglary. Many of your prior convictions involve very similar offending to your 2023 offending. Your previous convictions do indicate your predilection to commit aggravated robbery. They highlight the high risk of you offending in a similar manner if you are released. Those prior convictions tell me about your propensity to commit violent offences. They tell me that propensity is well entrenched. Your history of similar offending highlights the strong need for deterrence. Those are all factors relevant in determining whether an uplift is appropriate. So too, is the fact all your most recent offending was committed while you were on parole. An uplift of 15 per cent, in my view, is appropriate.
[42] Applying that uplift, I arrive at an adjusted starting point of 13 years and nine months’ imprisonment.
[43] From that starting point you are entitled to a full 25 per cent credit for your early guilty pleas. Mr Hall seeks a further 10 per cent deduction to reflect the matters set out in the s 27 cultural report.
[44] Mr Keremete, I have read that report carefully. Sadly, it makes all too familiar reading. I have referred to your unhappy childhood. I accept you grew up experiencing violence and other forms of abuse. You lost your relationship with your father from the age of 12. You were drinking heavily in your teens, although to your credit, you gave up alcohol in your twenties. You started using cannabis aged 14 and you have been a heavy user ever since. Your drug use has drifted into the use of other drugs including amphetamine, methamphetamine, and more recently ritalin. You told the report writer that you believe you have been affected by ADHD, although you have never been clinically assessed.
[45] While in prison, at age 26, you became a member of the Black Power. You say you remained a member until 2007, although the reports I have read express a concern that you have more recently been associating with gang members. I accept you have spent a very significant proportion of your adult life in prison, and you appear to be institutionalised. You told the report writer you do not want to be in prison, but you have adapted to it.
[46] You describe your current offending as being a consequence of you recognising the inevitability of a further lengthy custodial sentence and, I sense, you felt you had absolutely nothing to lose. That is perhaps reflected in your references to suicide by cop, which as Mr Mallett says is alarming.
[47] There are a number of factors that feature in your personal background that I do accept have a causative connection to your criminal offending. It is not surprising the Crown position is that your current offending, assessed against your extensive history of offending means your personal background ought to be disregarded. But, in my view it is worthy of recognition and, if you are to change your ways moving forward, and at some stage in the future, act as law abiding member of the community, I think it is really important that you spend time with appropriate experts reflecting on your past, the matters you discussed with the author of the s 27 report and gaining a greater understanding of how it has impacted on you.
[48]I fix a credit of 10 per cent for your personal background factors.
[49] Taking those personal considerations into account, I arrive at a finite sentence of eight years and eleven months’ imprisonment.
[50] The next issue to consider is whether a minimum period of imprisonment (MPI) should be imposed. I consider that an MPI beyond the statutory period of one-third of your sentence is necessary to hold you accountable for the harm to your many victims and to the wider community, to denounce your offending conduct, to deter you and others who might be like-minded and to protect the community.12
12 Sentencing Act 2002, s 86(2).
Because of the risk you pose and the strong need for deterrence, I consider an MPI of five years is appropriate.
Preventive detention
[51] Having determined what would otherwise be the finite sentence, I must then consider whether to impose a second sentence of preventive detention.
[52] The purpose of preventive detention is to protect the community from persons who pose a significant and ongoing risk to the safety of its members.13
[53] It is a sentence that cannot be imposed unless the Court has considered reports from at least two appropriate health assessors about the likelihood you will commit a further qualifying offence.14 I have considered reports from Clinical Psychologists Kate McKeogh and Kate Harris dated 18 December 2023 and 27 October 2023 respectively.
[54] A sentence of preventive detention is a matter for the Court’s discretion. The Sentencing Act requires that I have regard to five particular factors.15
[55] The first is any pattern of serious offending disclosed by your history.16 You first committed non-aggravated robberies in 2008. In 2003 you were sentenced to preventive detention for multiple offences of aggravated robbery and two very serious kidnappings. Your current offending occurred approximately 12 months after you were released on parole from the preventive detention sentence. During earlier releases from that sentence, you had offended but, I accept, at a much lower level. I acknowledge that between 2003 and 2023 you did not commit any serious violence offences although for significant periods you were in custody. What is clear is that when you came under pressure in the community in 2023, you resorted to instinct, that is to arm yourself with a weapon and to target commercial premises.
13 Sentencing Act 2002, s 87(1).
14 Section 88(1)(b).
15 Section 87(4).
16 Section 87(4)(a).
[56] There can be little doubt, Mr Keremete, that you have an established pattern of serious offending albeit I accept mitigated by that 20-year hiatus.
[57] The second factor is the seriousness of the harm to the community caused by your offending.17 It seems clear that when you resolve to offend, you do so in very concentrated bursts targeting multiple victims. The harm to the community is serious not just in terms of financial losses that are caused, but more importantly the impact on the targeted victims. The harm you have caused to the victims in this offending was psychological, rather than physical, but it was serious.
[58] The third factor I must consider is your tendency to commit serious violent offences in the future.18 In assessing that tendency, I have particular regard to the reports prepared by the clinical psychologists. Both have administered a number of different tools to assess the risk you pose of re-offending.
[59] Ms McKeogh assessed your violence risk using the Historical-Clinical Risk Management 20 version three (HCR-20 V3). You demonstrated problems on nine of ten historical (static) factors, which is predictive of long-term violent offending risk. While your 2021 reassessment showed a reduced risk of violent and other offending, the current offending reflects an increase to this risk.
[60] Ms McKeogh tells me you endorsed difficulties with all five of the current (clinical) risk factors. Your recent offending indicates significant problems with affective, behavioural, and cognitive instability – particularly overt violent ideation and difficulty accessing knowledge of your propensity for violence. More recently, your stated sense of hopelessness and escalated thoughts around your own death. Ms McKeogh says that when stressed, you demonstrate limited capacity for self-regulation, self-efficacy, and adaptive coping skills. She says the current offending demonstrates you have not benefitted significantly from psychological therapy aimed at your dynamic risk factors.
17 Section 87(4)(b).
18 Section 87(4)(c).
[61] Ms McKeogh says you do express a desire to engage in more rehabilitative programmes, but she expresses concern that your difficulty with managing life stressors is longstanding and often leads you to self-destructive and criminal behaviour.
[62] She says your risk of future violent offending is highest in the context of environmental stressors, substance abuse and when associating with antisocial peers.
[63] She does not consider the absence of serious physical harm inflicted on the victims in your current offending is indicative of a reduced risk of violent or other offending in the future. She explains that because since your return to custody, you have engaged in acts of physical aggression towards others. Ms McKeogh opines that there is little to suggest you would be able to place controls on your behaviour if you found yourself in a similar situation as you did when committing the current offences if you were released at any time in the foreseeable future.
[64] She describes your rehabilitative needs as extensive and long-term and is of the view that you require significant oversight on your eventual release.
[65] Ms Harris has traversed your early childhood as I have summarised. She says your initial offending occurred in the context of regular criminal behaviour, gang involvement, and an entrenched pattern of substance use. She says your 2020 offending was committed in the context of increased financial pressures, relationship conflict, accommodation instability, and a lack of proactive behaviour and problem-solving strategies. She says that in the face of similar difficulties following your release in 2022, you committed the present offences primarily for financial gain, with little consideration of the impact on the victims and wider community.
[66] Ms Harris describes your current offending as an ongoing and re-escalating pattern of serious violent offending, with preparedness to use threats of violence with a weapon for financial gain.
[67] She tells me your RoC*Rol score indicated a moderate risk of imprisonment within five years of being released and that you are in the high-risk category of the Violence Risk Scale, indicating a high risk of recidivism.
[68] Overall, she assesses you as posing a high risk of further violent offending and at least a moderate risk of further general offending.
[69] Having regard to those reports, Mr Keremete, there is little doubt you present as a high risk of offending in the future that would justify a sentence of preventive detention.
[70] The fourth factor I must consider are your efforts to address the factors that have been causative of your offending. It is concerning that notwithstanding the opportunities that have been presented to you over the years, you have reverted to the pattern of old.
[71] Ms Harris tells me that despite completing the STURP Programme for men with serious violence offending in 2012, you do not appear to have maintained this progress given your recent offending. She recommends referral to the Special Treatment Unit for Men with Violent Offending programme. You completed a six-month Drug Treatment Unit programme in 2010, a three-month programme in 2014 and the Hapori Ora community-based programme in 2023. However, your relapse into substance abuse precipitated your recent offending by your own admission, and it is recommended that you complete the Drug Treatment Programme while in prison and that you receive continued, intensive support after your eventual release. Ms Harris does consider you to be motivated to participate in the recommended treatment programmes and she tells me that you are likely to be responsive to treatment. That is positive Mr Keremete.
[72] The fifth factor I must have regard to is the principle that a lengthy determinate sentence is preferrable if this provides adequate protection for society. I have assessed the appropriate determinate sentence to be one of eight years and eleven months’ imprisonment with a five-year MPI. I do consider that to be a lengthy determinate sentence, a sentence that of its nature offers protection to the public.
[73] A case I discussed with counsel during submissions this morning is R v S.19 In that case, Williams J considered whether to impose a second sentence of preventive detention on a prisoner for sexual offending committed during the same time period as sexual offending for which an earlier sentence of preventive detention had been imposed. Williams J observed that the primary purpose of preventive detention was to protect the community rather than to punish the prisoner. The Judge concluded that a second sentence of preventive detention could not serve a protective purpose because the prisoner was already serving that sentence. The Judge considered the community was not further or better protected by imposing a second sentence of preventive detention, observing it will be for the Parole Board to be satisfied whether the community is safe before the prisoner could be released. Williams J imposed a lengthy finite sentence of 12 years’ imprisonment. He considered there to be no rational connection between protecting the community and a second sentence of preventive detention.
[74] As I have indicated that approach appears to be at odds with other cases to which I have been referred but could be said to support the position advanced on your behalf by Mr Hall. What I find is relevant is the length of the appropriate determinate sentence that was adopted in that case, considered alongside the statutory principle, that is the fifth factor I must consider.
[75] Mr Keremete, when you were sentenced in 2003 the Judge observed that if a finite sentence was imposed you would be eligible for parole while still young enough to commit further similar offences.20 You were then 31 years old. With a five-year MPI, you will be at least 56 years old before you could even be considered for release. I am optimistic that your risk must dissipate with age. That optimism is supported by research and a number of authorities that generally confirm the risk of further offending diminishes around the age of 60.21
[76] Further, while this offending was undoubtedly extremely serious and deserving of a stern approach from the Court, you had not committed serious violence offences
19 R v S [2013] NZHC 1572.
20 R v Keremete, above n 7, at [34].
21 See Department of Corrections v Broderick HC Whangarei CRI-2005-454-12 at [18] and R v Ottley [2016] NZHC 1324 at [46].
for a lengthy period. The 2023 offending did not involve physical violence, unlike your past offending. The potential for really serious violence was less than in your past offending because you were not in possession of a shotgun. Those factors may not mean a lot, Mr Keremete, but I think they reflect a shift in your risk profile over the years.
[77] Further, and as responsibly acknowledged by Mr Mallett, when I assess the protection of the public, I cannot ignore that you are subject to a sentence of preventive detention.
[78] I have had careful regard to your expressions of having lost hope, a matter that Mr Hall places some weight on. He expresses concern that you are on the verge of giving up. But you have indicated your willingness to engage in further programmes as recommended. Mr Keremete, that is to be encouraged, because it seems to me that is your only hope.
[79] Having regard to the factors I have outlined, and notwithstanding the risk you currently pose, I am persuaded by a fine margin that the determinate sentence I have indicated, does provide adequate protection to the public. The MPI I consider to be appropriate mirrors the MPI that would have been imposed if I was sentencing you to preventive detention. It will be for the Parole Board to consider if the risk you currently present is mitigated so as to permit your release in the future. Much will likely depend on your prevailing attitude and your willingness to learn from your past including this current offending.
[80] Mr Keremete, I have resolved not to impose a second sentence of preventive detention.
[81]Will you please stand.
Result
[82] Justin Wiremu Keremete, on each of the charges of aggravated robbery you are sentenced to eight years and eleven months’ imprisonment with an MPI of five years.
[83] On the charge of aggravated burglary, you are sentenced to six years’ imprisonment.
[84] On the charge of unlawfully taking the e-bike, you are sentenced to 12 months’ imprisonment.
[85] On the charge of breaching release conditions, you are sentenced to 12 months’ imprisonment.
[86]All sentences are to be served concurrently.
Ancillary order
[87] The Crown seek one further order. That is a firearms prohibition order under s 39A(2) of the Arms Act 1983. Mr Hall submits that such an order is unnecessary because of the inevitable lengthy period of time you will serve before your release.
[88] A firearms prohibition order will be appropriate if it is necessary, reasonable, and appropriate to assist in managing the risk that an offender poses to public safety.
[89] I accept that although you were armed with an imitation firearm on this occasion, your past pattern of offending demonstrates a high risk of accessing firearms or associating with persons who have access to firearms. I accept that risk ought to be managed by the imposition of a firearms prohibition order. I make an order accordingly.
[90]Mr Keremete, you may stand down.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
P H B Hall KC, Christchurch
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5
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