R v Keremete
[2018] NZHC 730
•19 April 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2016-063-570
- [2018] NZHC 730
THE QUEEN v
JAMIE KEREMETE
Hearing: 19 April 2018 Appearances:
A D Hill for Crown
W T Nabney for Defendant
Judgment:
19 April 2018
SENTENCING BY PALMER J
Solicitor/Counsel:
Gordon Pilditch, Rotorua
W T Nabney, Barrister, Tauranga
R v KEREMETE [2018] NZHC 730 [19 April 2018]
Introduction
[1] Mr Jamie Dean Keremete, aged 43, was convicted on 23 February 2018 of eight charges of violence against women, two former partners of his. During his trial, Mr Keremete pleaded guilty to one charge of intentional damage, which carries a maximum sentence of seven years’ imprisonment.1 At trial, he was found guilty of seven further charges:
(a)two charges of unlawful sexual connection, each carrying a maximum sentence of 20 years’ imprisonment;2
(b)one charge of injuring with intent to injure, carrying a maximum sentence of five years’ imprisonment;3
(c)one charge of male assaults female, carrying a maximum sentence of two years’ imprisonment;4
(d)one charge of threatening to kill, carrying a maximum sentence of seven years’ imprisonment;5
(e)one charge of wounding with intent to cause grievous bodily harm, carrying a maximum sentence of 14 years’ imprisonment;6 and
(f)one charge of intentional damage, carrying a maximum sentence of seven years’ imprisonment.7
1 Crimes Act 1961, s 269(2).
2 Crimes Act 1961, ss 128(1)(b) and 128B.
3 Crimes Act 1961, s 189(2).
4 Crimes Act 1961, s 194(b).
5 Crimes Act 1961, s 306.
6 Crimes Act 1961, s 188(1).
7 Crimes Act 1961, s 269(2).
Approach to sentencing
[2] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In this case, I have particular regard to the purposes of:
(a)holding Mr Keremete accountable for the harm done to his victims and the community;
(b)promoting in him a sense of responsibility for, and acknowledgement of, that harm;
(c)providing for the interests of the victims;
(d)denouncing his conduct; and
(e)protecting the community from him.
[3] I am also required to, and do, take into account principles of sentencing, particularly:
(a)the need to recognise the gravity of the offending, the degree of Mr Keremete’s culpability and the seriousness of his offending;
(b)the importance of consistency in dealing with similar offenders committing similar offences in similar circumstances;
(c)the effect of the offending on the victims and the community; and
(d)the requirement to impose the least restrictive sentence appropriate in the circumstances.
What happened?
June 2008 offending against Ms H
[4] Mr Keremete met and started a relationship with Ms H in mid-2007. In early 2008 she gave birth to their first child together. Their relationship was on and off, until it ended in late 2011.
[5] In June 2008, both were living in Rotorua. One evening, they were both in the Grumpy Mole bar with members of Mr Keremete’s family. The pair argued, resulting in Mr Keremete being removed from the bar by staff.8 Ms H soon left the bar, intending to take a taxi home to her mother’s place, where she was staying. She spoke to Mr Keremete outside the bar, who told her she should come home with him. She went with him reluctantly, telling the taxi driver on the way home that if anything were to happen to her, it would be Mr Keremete who had done it.9
[6] Mr Keremete had been sleeping in a car outside his mother’s house. When they arrived at his mother’s place, he “chucked” her into the car and “started laying into [her]”.10 He punched her in the body and head, choked her, covered her mouth and smothered her while calling her names. He gave her a black eye. After she took off her boots and jeans, Mr Keremete ripped her underwear off and punched her repeatedly in the vagina while she attempted to stop him.11 She described him as attempting to screw up her vagina like it was a stress ball.12 She said it left her feeling “tender and sore” as though she had just given birth.13 Ms H said they were in the car for six to eight hours, and the violence continued on and off during the night.14
[7] For this, Mr Keremete was convicted of injuring Ms H with intent to injure her, inside the car, and of unlawful sexual connection by fisting, twisting and pinching her genitalia.
8 NOE at 14–27.
9 NOE at 19/5–8.
10 NOE at 20/6–9.
11 NOE at 21.
12 NOE at 22.
13 NOE at 22/30.
14 NOE at 23/20–23.
2015/2016 offending against Ms M
[8] In June 2015, Mr Keremete met the second complainant, Ms M, and within a month or so started a relationship with her. They moved to Rotorua together in November 2015. The remaining six convictions relate to Mr Keremete’s offending against her.
[9] Ms M described Mr Keremete as controlling and jealous. She said that while in Rotorua he shoved, pushed and punched her “nearly every day”.15 Neighbours saw Ms M hiding with bruises. Another neighbour said he saw Mr Keremete tower over her while she acted like a broken dog.16 Mr Keremete was convicted of a representative charge of male assaults female.
[10] On one occasion, when Ms M attempted to leave the unit, Mr Keremete threatened to cut her head off with a Katana Samurai sword. He asked her whether she wanted him to “cut [her] f-ing head off” and swung it towards her. He stopped only when his sister, who had seen the incident through the door, came running into the unit. For this Mr Keremete was convicted of threatening to kill.
[11] On another occasion, Mr Keremete became angry with Ms M and followed her out of the unit. Mr Keremete told her she was not going to leave. He picked up a hose-reel and smashed it into the windscreen of her car, breaking the windscreen. He kicked in the panels along the right-hand side of the car, and flattened a tyre using a knife. Mr Keremete took a cage containing Ms M’s pet birds out of their unit and set them free outside. Mr Keremete later told Ms M’s daughter in front of Ms M he had damaged her car to keep her from leaving. She said he was laughing while he told the story, like it was funny. This was the charge of intentional damage to which Mr Keremete pleaded guilty during the trial.
[12] On another occasion, Mr Keremete repeatedly forced his fist into Ms M’s vagina while wearing large rings.17 Ms M described him as “trying to grab my insides,
15 NOE at 150/5.
16 NOE at 384/26.
17 NOE at 150–151; 252–253.
and pulling”.18 She said he put his fist into her vagina six times. She started bleeding and he told her to go and clean herself up and then come back. For this, Mr Keremete was convicted of sexual violation by unlawful sexual connection.
[13] After Mr Keremete’s relationship with Ms M had ended, there was a final episode of violence.19 On 10 February 2016, Ms M parked her car at the end of a cul- de-sac on Old Quarry Road, Rotorua, and slept in the car. She said she did so because Mr Keremete had been stalking her mother’s property. A neighbour gave evidence of that. Ms M woke around 3.30 am to find Mr Keremete standing next to the car wearing a balaclava holding a crowbar or something similar. He lifted the balaclava to show her it was him. He smashed the front window and pulled her out by her hair. He tried to hit her in the head but she blocked the blow, before he hit her in the knee. She got up off the ground and tried to run away, yelling and screaming. He chased her and pushed her, and she fell over a drop before running into a neighbour’s house. Ms M was in hospital for two days for treatment on her knee, which required more surgery. She says her knee is still damaged. For this, Mr Keremete was convicted of international damage to the car and wounding Ms M with intent to cause grievous bodily harm.
[14] In her victim impact statement, Ms M says she has lost her self-esteem and confidence and passion for life, she trusts no one and isolates herself from society. Ms H also has difficulty now relating to men.
Starting point
[15] Mr Keremete, I first I set starting points to reflect the seriousness of your offending. I consider each set of sexual offending, uplifted by the other offences committed in a domestic setting during the course of your relationships with your former partners. The Old Quarry Road episode occurred after your relationship with Ms M ended, when you sought her out in a pre-meditated attack. I treat that separately as I do not consider it was sufficiently connected with the earlier offences against Ms M to treat it with them.
18 NOE at 151/3.
19 NOE at 190–192.
Sexual offending
[16] Mr Hill, for the Crown, submits both sets of sexual offending, which notably included you punching each of your former partners in the vagina, are at the upper end of band two in the case of R v AM, the guideline case for unlawful sexual offending,20 warranting a starting point of seven to eight years’ imprisonment for each incident. He submits the facts demonstrate a very alarming situation for each victim given the force and ferocity of the attacks. Mr Nabney also submits the offending falls toward the high end of band two, citing R v Stewart.21 He submits a six-year starting point would be appropriate in relation to Ms H, with a lower starting point for Ms M.
[17] I consider both sets of sexual offending involved the aggravating features of: violence; harm to the victim; and a serious degree of violation. Ms H was punched repeatedly. She described the harm and pain suffered in graphic terms, as like childbirth. Ms M described the offending against her causing bleeding and cuts inside her vagina from the rings you were wearing.22 I set a starting point for the unlawful sexual connection against each complainant of seven years’ imprisonment. I regard that as consistent with the Court of Appeal’s use of Stewart.23
[18] I uplift the seven-year starting point in relation to the offending against Ms H by nine months for the additional offence of injuring with intent to injure. She was thrown in the back of the car, punched and kept there overnight by intimidation and violence.
[19] I uplift the seven-year starting point in relation to the offending against Ms M by one and a half years, to reflect the conviction of a representative charge of male assaults female as well as the threat to kill with a samurai sword and the intentional damage to Ms M’s car. I consider those convictions reflect an established pattern of violence by you against Ms M over a considerable period when she was your partner. The jury did not believe your protestations you would not do that to a woman. Neither
20 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
21 R v Stewart CA515/05, 15 August 2006.
22 NOE at 253/3–4.
23 R v AM (CA27/2009), above n 20, at [118].
do I. The evidence at trial suggests you have a serious anger management problem which you took out on women — your then-partners — in these offences.
Old Quarry Road attack
[20] Mr Hill submits the Old Quarry Road attack against Ms M falls at the upper end of band two or the lower end of band three as set out in R v Taueki,24 warranting a starting point of nine to 10 years’ imprisonment. Mr Nabney agrees on where the offending sits in which range but submits a starting point of seven to eight years is appropriate.
[21] I consider your attack on Ms M involved aggravating factors of: extreme violence; clear premeditation; serious injury, requiring hospitalisation; use of a weapon, a crowbar; the vulnerability of being attacked when asleep in the small hours of the morning;25 and attacking the head. Although Ms M was in a car and not a house, in some ways the offending was similar to a home invasion given you deliberately smashed your way into the car in which she was sleeping at night. The offending sits at the upper end of band two in Taueki.26 It could be argued to fall into band three.27 I set a starting point of eight and a half years’ imprisonment, which I consider consistent with the less serious case of Kauwhata v R.28 I uplift that by three months for the offence of intentional damage to the car that evening.
Adjustments for personal factors and a guilty plea
[22] Now I consider adjustments from the starting point to reflect your personal circumstances. I have a report from the Department of Corrections which states “Mr Keremete has an appalling offending history with 61 previous convictions, 33 of these resulting in imprisonment.” It assesses you as being at high risk of re-offending and of high risk of harm to others. In discussing your offending it says you focus on the faults of your female victims and rationalise your own actions. This is consistent
24 R v Taueki [2005] 3 NZLR 372 (CA).
25 Wairau v R [2015] NZCA 215.
26 At [38]–[39].
27 At [41](b).
28 Kauwhata v R [2010] NZCA 451.
with your evidence at trial. It also says you demonstrate minimal insight into your overall violent offending history.
[23] Mr Hill submits there should be an uplift from the starting point to reflect your past convictions for violence against women, and no discounts for mitigating features. He points to your evidence at trial insisting that you were the victim of a conspiracy by the complainants, witnesses and the Police. Mr Nabney acknowledges, as he must, that you have a significant list of previous convictions, including against Ms H. He submitted that any uplift should be no more than six months.
[24] As the Court of Appeal has made clear, an uplift to a sentence for previous offending can be justified on the basis of protection of the public because it indicates a tendency to commit the particular type of offence for which the offender is convicted.29 I consider there should be an uplift of nine months’ imprisonment on each of the three sets of offences, to reflect your previous offences for violence against women.
[25] Your mother, Ms Dorothy Mohi, has provided the Court with a statement under s 27 of the Sentencing Act 2002 in relation to your personal and family background and the way in which that may have related to the commission of these offences. She says you were mischievous and hyperactive as a child. She says, while you were growing up, you would often be beaten by your father, to the extent she decided to send you to live with your grandparents for your own safety. She also says she was assaulted by your father. She has seen you become angry. Mr Nabney says the significant violence you experienced in your upbringing explains why you have used violence on a regular basis. I have also seen a letter from a nurse suggesting you have poor self-esteem which may have contributed to “poor boundaries in relationships”. And I have seen letters of support from other previous partners and family members.
[26] I have also seen a letter from you, Mr Keremete. You say are you very ashamed to be standing before the courts again today, you know you’ve made a lot of wrong decisions and there’s no excuse for what you’ve done wrong. You apologise for some
29 Beckham v R [2012] NZCA 290 at [84], citing R v Casey [1931] NZLR 594 (CA) at 597 and R v Ward [1976] 1 NZLR 588 (CA) at 591.
of your behaviour and say you have become an angry and stressful person. You are not expressing remorse for offending you still deny. I am not convinced, from that letter, you have fully fronted up, inside yourself, to all your past actions. I accept you want to change. You will only make progress if you genuinely own what you have done, without excuse or justification or blaming anyone else, and work on how to change that for the future.
[27] I also thank Ms Mohi for her statement. I agree it helps to explain how Mr Keremete came to this point, though it does not excuse him for it. He will need all the support from his family that he can get if he is truly to face up to the inner demons that drive his behaviour. That support needs to be based on a clear-eyed, honest acceptance by him and his family of his behaviour for what it is. Sympathy for his excuses or agreement with his suggestions of conspiracy will not help Mr Keremete to change and will not help stop the cycle of violence passing down to the next generation, your children Mr Keremete.
[28] I also agree with the Department of Corrections’ recommendation that Mr Keremete should be assessed for programmes or rehabilitative pathways by a departmental psychologist and the nurse’s recommendation that you would benefit from therapy to work on your prior trauma and childhood.
[29] Finally, Mr Hill submits there should be no discount for guilty pleas and Mr Nabney does not suggest otherwise. It was not until the end of the trial, after you gave evidence, Mr Keremete, that you pleaded guilty to the charge of intentional damage of Ms M’s car. Doing so did not save the victims, witnesses or the court any time or effort. I make no discount for that.
Totality
[30] Now I need to stand back and review the sentence overall, based on the totality of the offending. Your offending against each victim must be considered separately and cumulative sentences imposed for the different sets of offending. But, as both counsel agree, the end sentence must be reviewed to ensure it is not out of proportion to the overall gravity of the overall offending. I am required to ensure that the overall
sentence should not have a crushing effect. Some prospect of rehabilitation and release needs to be held out.
[31] Mr Hill submits, taking the totality of the offending into account, an end sentence of at least 15 years’ imprisonment is appropriate. Mr Nabney submits a range of 12 to 13 years, before considering mitigating factors, would properly reflect your culpability.
[32] For unlawful sexual connection against Ms H I have set a starting point of seven years, uplifted by nine months for injuring her with intent to injure her in the same episode. That is further uplifted by nine months for your previous offending against women. That results in eight years’ and six months’ imprisonment.
[33] For unlawful sexual connection against Ms M I have set a starting point of seven years, uplifted by a year and a half for male assaults female, the threat to kill and the intentional damage. That is further uplifted by nine months for your previous offending against women. That results in nine years’ and three months’ imprisonment.
[34] For wounding with intent to cause grievous bodily harm, I have set a starting point of eight and a half years, uplifted by three months for the intentional damage to the car that evening. That is also uplifted by nine months for your previous offending against women. That results in nine years’ and six months’ imprisonment.
[35] These are all different sets of offending. The sentences should be cumulative on each other. But a sentence of almost twenty-seven and a half years’ imprisonment would be crushing indeed. Taking the totality of your offending into account, and not double-counting the adjustments, I consider an end sentence of 13 years’ and six months’ imprisonment would fairly reflect your culpability for these offences. If necessary, that could be understood in terms of four years for the offending against Ms H, five years for the offending against Ms M and four and a half years for the Old Quarry Road episode.
Minimum period of imprisonment
[36] Finally, under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. I can only do so if I am satisfied the period otherwise applying is insufficient for the purposes of holding the offender accountable, denouncing his conduct, deterring others or protecting the community. The minimum period must not exceed the lesser of two thirds of a sentence or 10 years.
[37] The Crown submits I should impose a minimum period of imprisonment of at least 50 per cent of the end sentence, to protect the community from the significant risk posed by you. Mr Hill points to your propensity to be controlling, possessive and violent towards your partners and your lack of insight into this behaviour, supported by the pre-sentence report. Mr Nabney submits a minimum period of imprisonment is not necessary because the offending in relation to Ms H was relatively historical and the offending against Ms M did not demonstrate an ongoing course of conduct requiring a minimum period. He suggests I should leave release date to the Parole Board.
[38] If you demonstrated acceptance or insight into the significance or effects of your behaviour I might agree with Mr Nabney. But I consider the offences for which you have been convicted now and in the past do demonstrate an ongoing and escalating pattern of violence towards women – your partners. Previous terms of imprisonment have not stopped that. I consider a minimum period of imprisonment of 50 per cent of each sentence is required to protect the community from that pattern of violence.
Sentences
[39]Mr Jamie Dean Keremete, please stand.
[40] For the offence of unlawful sexual connection against Ms H you are sentenced to imprisonment for eight years and six months with an uplift of five years to reflect the other offending, so thirteen years and six months altogether, with a minimum period of imprisonment of six years and nine months. This sentence is to be served concurrently with (at the same time as) your sentence of one year for injuring Ms H with intent to injure her.
[41] Concurrently with that, for the offence of unlawful sexual connection against Ms M you are sentenced to imprisonment for nine years and three months with an uplift of four years and three months to reflect the other offending, so thirteen years and six months altogether, with a minimum period of imprisonment of six years and nine months. That sentence is to be served concurrently with (at the same time as) your concurrent sentences of one year’s imprisonment for male assaults female, six months’ imprisonment for threatening to kill and three months’ imprisonment for intentional damage.
[42] For the offence of wounding Ms M with intent to cause grievous bodily harm, you are sentenced to imprisonment for nine years and six months, with a minimum period of imprisonment of four years and nine months. That sentence is to be served concurrently with the others and with your sentence of three months’ imprisonment for intentional damage to Ms M’s car that night.
[43] So, 13 years’ and six months’ imprisonment in total. Counsel does anything arise from any of that? You may stand down Mr Keremete.
………………………….
Palmer J
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