R v Kovaleski

[2022] NZHC 2654

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2021-054-20

CRI 2021-054-1836

[2022] NZHC 2654

THE KING

v

CALEB PETER KOVALESKI

Hearing:	13 October 2022
Counsel:	B D Vanderkolk and A M Barham for Crown P L Murray for Mr Kovaleski
Sentencing:	13 October 2022

JUDGMENT OF MALLON J

Introduction

[1]    Mr Kovaleski, I am going to ask you to stand while I sentence you, please. You appear for sentencing on the following charges:

(a)using a firearm against a law enforcement officer;1

(b)discharging a firearm with reckless disregard x 2 (one under the Crimes Act and the other under the Arms Act);2

1      Section 198A(1) (maximum penalty 14 years’ imprisonment).

2      Crimes Act 1961, s 198(2) (maximum penalty seven years’ imprisonment); and Arms Act 1983, s 53(3) (maximum penalty three years’ imprisonment or a fine of $4,000 or both).

R v KOVALESKI [2022] NZHC 2654 [13 October 2022]

(c)unlawfully taking a vehicle;3 and

(d)two charges of aggravated assault.4

[2]    Following your guilty pleas, at the Crown’s request, health assessor reports were sought so that the Court can consider a sentence of preventive detention.5 The Crown no longer seeks a sentence of preventive detention and having reviewed the reports, I agree with that assessment. A lengthy finite sentence with the opportunity to engage in treatment and management of the causes of your offending, which you are assessed as being able to engage in, will protect the community, and a finite sentence is therefore more appropriate than preventive detention. I am therefore not sentencing you to preventive detention.

Agreed summary of facts

[3]    The offending relates to three events that took place between 31 December 2020 and 4 January 2021 when you were out of control on methamphetamine, just two weeks after your release from prison.

Recklessly discharging a firearm (first charge)

[4]    It began in the early evening on 31 December 2020 when you were a passenger in a car being driven by your associate. He was driving at 30 km/h in a 100 km/h zone. Because of the slow speed of your vehicle, another car approached and then overtook your vehicle. The driver was with his partner and two young children.

[5]    Your associate began tailgating that car and, when it was one to two metres from them, you leant out of the window of the vehicle and pointed a firearm at the car. You discharged that firearm twice. One bullet travelled through the car’s rear tail-light and lodged in the car’s frame a short distance from where one of the children’s head was positioned in the car seat. The other bullet made a hole in the handle of the driver

3      Section 226(1) (maximum penalty seven years’ imprisonment).

4      Crimes Act, s 192(1)(a) (maximum penalty three years’ imprisonment).

5      Sentencing Act 2002, s 88.

door. The victim accelerated to get away from you and the speed of the vehicles reached upwards of 200 km/h.

Aggravated assault x 2

[6]    Two days later, at 8.20 am on 2 January 2021, you and your associate entered an address through the front door, wearing masks to disguise your identities.

[7]    You went into the first bedroom where two people, a man and a woman, were asleep. The man woke up to see someone standing over him. Either you or your associate put a foot on his chest and demanded that they hand over their IDs, wallets and bank cards. He told you that he did not have a wallet. He was told to get out of bed so that the bed could be searched and you and your associate also searched the room looking for his wallet.

[8]    You and your associate then went into the lounge where two flatmates were sleeping. The two of you yelled at them, demanding they hand over their wallets and other items, [and] punched each of them in the face with a closed fist before leaving. The victims suffered bruising to the face and head or neck from the assault.

Using a firearm against a police officer

[9]    Two days later, at about 5.25 [pm] on 4 January 2021, you were driving towards Foxton on State Highway 1 in an aggressive manner, swerving on the road and repeatedly crossing the centre line. Concerned members of the public contacted the police.

[10]   A police officer driving a marked police patrol car located your vehicle on Foxton Beach Road. He activated the patrol car’s red and blue flashing lights, directing you to stop your vehicle. You did not stop. The officer did not pursue you and pulled over onto the side of the road. You drove away but turned around and headed towards him. As you approached the officer in his parked patrol vehicle, you fired a firearm, a .22 calibre bolt action rifle, through the driver’s side window of your car in the officer’s direction. You then fled the scene.

Unlawfully taking a motor vehicle

[11]   Shortly after this, at about 6 pm, you drove at speed, on the wrong side of the road and into the path of another vehicle. The driver had to take evasive action to avoid a collision. You skidded your vehicle to a stop and blocked the road in front of her. She attempted to drive around you, and you got out of your vehicle holding a firearm at waist height, in plain view, but not pointed at the woman.

[12]   As you walked towards her car, you told her to get out of the car. Fearing for her safety, she did so. You got into the car, threw her bag and cell phone out of the car window, apologised and drove away. She was shocked by the [incident] but did not sustain physical injury. We have heard this morning in her own words what a horrific and frightening experience that was for her, understandably, and the lasting impacts that has had on her and also the financial loss she suffered with the loss of her car.

Recklessly discharging a firearm (second charge)

[13]   A police officer located you driving her stolen car a short time later. The officer activated the red and blue flashing lights of the patrol car to direct you to stop the car. You failed to stop and exceeded 152 km/h in a 100 km/h zone. You began waving your firearm, out of the car window, and at the officer who was pursing you. Other vehicles had to swerve to avoid you.

[14]   The police then laid out tyre deflation devices in your path and a police car was parked on the road to direct you to these devices. You drove around the device and directly at the parked police car. As you were doing so, you discharged your firearm at the car. You then collided with the car, causing extensive damage to it and the stolen car that you were driving.

Personal circumstances

[15]   Turning to your personal circumstances. You were aged 30 at the time of these events and you are now 32 years old.

Previous offending

[16]   You have a lengthy list of previous convictions with multiple convictions for most of the last 16 years. Among other things, you have multiple convictions for dishonesty, including interfering with cars,6 driving offending7, assaults, resisting police,8 and breaching court conditions or sentences.9 In the main, although the offending has been constant, it was also relatively low-level compared with your present offending and your most recent previous offending.

[17]   Your more serious offending began in 2016 where, as here, you drove dangerously, failed to stop when signalled to do so by the red and blue flashing lights of a police car, and you used a firearm against a law enforcement officer. For this offending you received your first strike warning.10

[18]   In 2018, while on release conditions, you committed an assault, made a threat to kill and carried out a robbery for which you received your final warning.11

[19]   The 2016 and 2018 offending were also carried out, as I understand it, when you were out of control on methamphetamine.

[20]   Your offending for which you are being sentenced today was committed while you were subject to the release conditions of that most recent previous offending.

Reports

[21]   The reports before me tell me about your upbringing. Your anti-social and dysregulated behaviours began in childhood, according to the reports. Your father was a member of the Mongrel Mob and was not present in your life. Your mother was an alcoholic and had a series of gang-related partners. You were subjected to and witnessed violence and abuse as a very young child. From about the age of six, your mother placed you in the care of a friend and you lived in foster homes between the

6      2008, 2011 and 2014.

7      2007 x 4, 2009 x 7, 2010 x 3, 2012, 2013 and 2016 x 5.

8      2007 and 2014.

9      2007, 2009 x 3, 2010 x 2, 2011, 2012 x2, 2013 x 2, 2014 x 7, 2016 and 2018.

10     Sentencing Act 2002, s 86B(1)(b).

11     Section 86C(1)(b) or 86E(6)(b).

ages of 10 and 17. You did have one good experience with one of the families with which you lived [when you were] between 13 and 17 and who, in your words, treated you normally and like one of their own kids. You have limited education. You were expelled from school due to your behaviour. You did a building course at age 16 when you were in the care of that good foster family and you went on to do some building work. This stopped when you visited your mother, got involved “in the wrong crowds” and, according to the reports, when you were working in carnivals at the age of 17 you first began using methamphetamine.

[22]   You told the pre-sentence report writer that you were under the influence of methamphetamine at the time of this recent offending and that if you were sober, you would not have offended. You also said you always carry a firearm with you for protection. The report writer identified methamphetamine and the fact that violence has been a way of life for you as some of the risk factors that lead to your risk of harm, both to yourself and to others.

[23]   Dr Judson, a consultant forensic psychiatrist, and Dr Simons, a clinical psychologist, highlight your long-standing substance abuse as significant issues in terms of your offending. To Dr Judson you described that methamphetamine initially gives you euphoria but quickly turns to paranoia, recklessness and a feeling of total invulnerability. You were said to understand that this is a serious problem for you.

[24]   You were also introduced to alcohol in early childhood and have been a frequent heavy user, but this is not thought to contribute to your offending. You have previously completed a rehabilitation programme for opiates in 2011.

[25]   The pre-sentence report writer considered you showed little remorse or understanding for the effects of your actions on others. At the time that you were speaking to the report writer, you denied that there were children in the car, that maybe you did not know that they were there or were not aware of it, and said the reason you fired at the car was because you thought the driver was a different person, who you described as a “piece of shit”. In explanation for your offending against the police officer, you said that police are “the biggest gang in New Zealand” and that police officers are “pigs”. The only offending you expressed regret for was the unlawful

taking of the woman’s vehicle on 4 January 2021. However, you did acknowledge to that writer that you need counselling.

[26]   However, you expressed to Dr Judson both regret and a sense of intense failure for having found yourself back in this position. While using methamphetamine produces aggressiveness, recklessness and paranoia, Dr Judson says that when you remain drug-free, unfortunately this has only been for short periods of time, you actually function quite well.

[27]   To Dr Simons you admitted responsibility for your offending and made no attempt to minimise it or, indeed, your own risk of further reoffending. Although, there were some minor matters in the summary of facts that you disagreed with, you stated you did not intend to hurt anyone when using the firearm and did not aim at any individual, but you did accept the risk of injury or death as a result of your actions.

[28]   Sadly, you have a history of suicide attempts and self-harming behaviours and are assessed as having a high risk in this regard. You are taking medication for ADHD, depression, pain, mood and anxiety and insomnia. You have also reported a history of antenatal alcohol exposure and I see there is some commentary about that in the reports, albeit, there has never been any formal diagnosis of that. You have been seeing a counsellor who has provided a letter of support. It tells me you desire to “understand [yourself] better and why [you] keep re-offending and coming back to prison”, including your desire to learn to accept the abuse that has happened to you and move on from it. It says that you have taken responsibility for the seriousness of your offending.

[29]   Both Dr Judson and Dr Simons considered that without intervention, there is a risk of you resuming your use of methamphetamine and, inevitably, reoffending. They both considered this risk can be reduced by addressing your mental health difficulties and treatment for substance abuse and violent offending, and providing for a slow re-integration for you back into the community. You expressed motivation to participate in any available treatment options. Dr Simons believes that there is nothing to suggest that you are not capable of participating in treatment programmes.

[30]   The cultural report reiterates much of your personal background canvassed in the health assessment reports, albeit in a bit more detail. You had a “chaotic and unstable” childhood. The writer identified your unstable upbringing, parental neglect, normalisation of crime, gang affiliation, experience of abuse, substance addiction, mental health and institutionalisation and a struggle to reintegrate into the community as factors likely contributing to your offending. Again, to that writer you expressed willingness to engage in rehabilitation programmes.

Approach to sentencing

[31]   Although your charges include what were stage three offences, the three strikes regime has since been repealed. You are to be sentenced according to ordinary sentencing principles.12

Starting point

Using a firearm against a law enforcement officer

[32]   The most serious offence is the charge of using a firearm against a law enforcement officer.13 It was unprovoked, lawless and dangerous behaviour against a long-serving and experienced police officer carrying out his duties on behalf of the community. Parliament has made it clear that the use of firearms against law enforcement officers is extremely serious. Police officers, routinely are not armed in this country, are vulnerable to dangerous behaviour of this sort when they are out there serving the community on behalf of us all.14

[33]   The aggravating factors of the offending here are that you actually discharged a weapon in the direction of the officer; the officer was vulnerable at the time as he was alone; and there was an element of premeditation in that although the police pursuit had ended, you turned back and fired; and although it is not said that you caused any damage to the police vehicle or physically harmed him, he [the officer] has suffered significant psychological harm. As we heard in the victim impact statement

12     Three Strikes Legislation Repeal Act 2022, s 14; and Sentencing Act, s 6.

13     There is no tariff judgment for this offence.

14     R v Samuels [2009] NZCA 153; and R v Shaw HC Timaru CRI-2009-045-631 16 December 2009 at [8].

read this morning, the officer now suffers from Post Traumatic Stress Disorder (PTSD) as a result of your actions and is unable to continue his work in the police force. He has had many weeks off work since the incident, cannot experience a good night’s sleep, suffers from anxiety and is seeing a psychologist. He can no longer work on the front line. His family have also been impacted, as you would expect, from all that the officer is suffering from.

[34]   The Crown says that I should adopt a starting point of at least 10 years’ imprisonment for this offending. Your lawyer says that is too great and that a sentence in the range of seven to eight years would be in line with the authorities. In light of the aggravating features, I consider a starting point of nine years’ imprisonment is appropriate for the offence of using of a firearm against a law enforcement officer when compared with other cases.15

Unlawfully taking a motor vehicle and recklessly discharging a firearm

[35]   The offending that immediately followed this was unlawfully taking the motor vehicle and discharging a firearm with reckless disregard when the police were trying to encourage you to stop driving at speed in the stolen car. The appropriate approach is to uplift the starting point for these matters to reflect the totality of this spate of offending.16

[36]   The Crown says there should be a 12 to 18-month uplift for these offences. Your  lawyer essentially says the same  – six to 12 months for one of them and       12 months for the other.

[37]   Both of these offences were serious in their own right. Given the dangerous driving, the presence of a weapon when taking the car from the woman who understandably feared for her safety as you heard this morning and how much she has

15 I have considered R v Lloyd [2022] NZHC 1044; Cassidy v R [2021] NZHC 873; R v Ma’anaiama [2020] NZHC 551; Kite v R [2018] NZCA 485; R v Taylor [2018] NZHC 2284; R v Heke [2018] NZHC 3168; R v Dixon [2017] NZHC 2279; R v Toleafoa [2012] NZHC 3059; R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009; R v Samuels, above n 14; R v Shaw, above n 14; R v Wells Auckland HC CRI-2003-092-026964, 30 April 2004; and R v Collier CA27/92, 31 May 1992.

16 Sentencing Act, s 84(2). They are connected in time and circumstances and should therefore be dealt with concurrently.

been impacted by that, and the fact that you refused to stop for the police and instead fired at the patrol car. On their own, they would attract higher starting points than counsel have proposed. However, because they are part of a course of conduct which began with discharging the firearm at a police officer, for which a nine year starting point already applies, totality must be considered. For that reason, and in line with the submissions of counsel, I consider that an uplift of 18 months on the starting point of nine years is appropriate.

[38]   That brings, for those matters, you to a point of 10 years and six months’ imprisonment.

Discharging a firearm with reckless disregard

[39]   Turning then to the offending first in time that began on 31 December 2020, that of discharging a firearm with reckless disregard at the car that had children in it, the Crown and your counsel are agreed that a cumulative sentence is appropriate.17 The Crown submits that the starting point should be between four to four and a half years. Your lawyer submits that this is too high, and a starting point of three years would be appropriate and in line with authorities.

[40]   The aggravating features are the vulnerability of the victims, especially given there were children in the car, and the fact that the bullets lodged in the car, one of them not far from the head of one child, which, although that was not your intention, is the dangerous nature of that kind of behaviour. There was no element of premeditation and that distinguishes the case from some of the cases referred to by the Crown.18

[41]   From a review of the cases, I consider that a starting point of four years’ imprisonment is appropriate before totality considerations.19

17 Section 84. Again, there is no tariff case for this type of offending and I set the starting point with reference to cases.

18   For example, in R v Templeton  CA460/05, 6 July 2006, the appellants planned to exact revenge   on the victim for suspected theft of cannabis.

19 I have considered Gathergood v R [2010] NZCA 350; R v Hines CA12/99, 12 March 1999; Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011; and R v Motuliki HC Auckland CRI- 2006-092-18270, 4 March 2008.

Aggravated assault

[42]   Cumulative sentences are also appropriate for the two charges of aggravated assault.20 Counsel agree that this should be a starting point of six months’ imprisonment, which accords with the principle of parity as that was the sentence that your co-offender received for that offending.21

[43]   The aggravating features are that it involved entering someone’s house, the victims were vulnerable because they were asleep, there was a punch to each of the victims directed at their heads, the assault was premeditated, and you used masks. In light of these features and the cases and the principle of parity, I agree that a cumulative starting point of six months’ imprisonment is appropriate.

Overall starting point

[44]In summary, the starting points are:

(a)using a firearm against a law enforcement officer – nine years;

(b)uplifted by 18 months for unlawfully taking a motor vehicle and recklessly discharging a firearm;

(c)added to that, four years’ imprisonment for discharging a firearm with reckless disregard; and

(d)six months’ imprisonment for the aggravated assault.

[45]   That would come to an overall starting point of 15 years’ imprisonment before personal factors.

[46]   I must, however, stand back and assess the issue of totality overall.22 Doing that, I consider that some adjustment is appropriate for what was a course of conduct

20 Sentencing Act, s 84(1). There is no tariff judgment for this offending.

21    Mr Rodgers was given six months as a starting point for the assault charges, and an end sentence of eight months’ imprisonment for these and his charge as accessory after the fact was imposed.

22 In sentencing for multiple offending, the total sentence imposed must reflect  the  overall  criminality of the offending. See Polaapau v R [2020] NZCA 227 at [44]. A crushing sentence which would deprive the offender of all hope should generally be avoided: R v Johansen (1997) 15 CRNZ 111 (CA) at 121.

or a spate of offending over a short period of time. I therefore reduce the sentence by one year, which brings me to 14 years’ imprisonment before personal factors, which compares with the 12 and a half to 13 years your counsel submitted and the 15 years that the Crown submitted.

[47]   The Crown did submit that there should be an uplift for what is referred to as the protective principle, but I do not consider this is appropriate because, in part, as the Crown proposes it, it then requires a reduction for totality in any event. But also, I have already taken into account the dangerous nature of your offending and the risk it poses in the starting points I have adopted. I also note, in particular, that your offending did not involve any actual physical injuries to any of the persons and it does appear that the shots were aimed at vehicles, rather than directly at any person intending to actually hit the person. The risky behaviour appears to arise when you are on methamphetamine, for which treatment is available if you are motivated to do that and it is said that you are, and which also gives rise to your feeling that you have got nothing to live for anyway.

Adjusted starting point

[48]   Turning to your personal aggravating factors, counsel are agreed that an uplift for previous relevant offences and that you offended while subject to release conditions is appropriate.23 The Crown says 24 months for these factors. Your lawyer says that would amount to double punishment and would be too severe and suggests a 12-month uplift.

[49]   I do agree that an uplift is appropriate for these two matters. They demonstrate a particular need for individual deterrence and accountability, particularly because you have used a firearm against a law enforcement officer in 2016 and you have multiple other relevant convictions and you have demonstrated a disregard for release conditions.24 I consider, however, that the uplift should be less than what has been submitted by counsel. It is clear from the reports that you are institutionalised from

23 Sentencing Act, s 93(2)(a).

24   As the Court of Appeal recognised in R v Clunie [2013] NZCA 110, an uplift for offending while on sentence is not double counting but a reflection of an offender’s disregard for court processes and orders.

your 16 years spent mainly in prison and a particularly risky time for someone who is institutionalised, and it appears to be for you, is the period immediately on your release. I have therefore decided that the uplift should be confined to a six month uplift.

[50]   Then turning to personal mitigating factors, the Court of Appeal has recognised that mental health and personal considerations, such as youth or systematic deprivation, may operate to mitigate.25 The reports before me directly link your risk of reoffending to circumstances when you are under the influence of substances, such as methamphetamine, and which leads to your feeling of not caring whether you live or die. The health assessors both identified that treatment can reduce your risk of reoffending. Based on this information, I consider that a discount in the range of 10 to 15 per cent is appropriate for your various personal circumstances.

[51]   You are also entitled to credit for your guilty pleas, and I take into account the timing of that was complicated by the three strikes regime,26 and the foreshadowed repeal of that regime, and that you had indicated to counsel that your intention was to plead guilty. It followed with the amendment of charges and the repeal of that legislation. The Crown submits a discount of 15 per cent would be appropriate. Your lawyer says it could be as high as 20 per cent. I agree that the appropriate range is 15 to 20 per cent in the circumstances assessed overall.

[52]   Applying the six-month uplift and a 30 per cent discount for personal circumstances and your guilty plea, that would result in an end sentence of 10 years and four months’ imprisonment.

Non-parole period

[53]   The Crown seeks a minimum period of imprisonment (MPI)27 of two-thirds of the final sentence imposed. Your lawyer says it is difficult to oppose imposing an MPI but any non-parole period should be set at 50 per cent of the sentence to incentivise

25     Orchard v R [2019] NZCA 529 at [46]–[47].

26     Set to be repealed by 1 July 2022 with Mr Kovaleski’s trial set for 11 July 2022.

27     Sentencing Act, s 86(1).

you to engage fully in rehabilitation, balanced with the need for deterrence, denunciation, accountability, and community safety.

[54]   I am satisfied that one-third default minimum is insufficient, particularly because of the need to hold you accountable and to denounce your conduct, and for the need to protect the community from you.28 I consider an MPI of five years to be applied on the lead offence would be appropriate to reflect the risk to the community your dangerous offending presents, while still allowing you the opportunity to meaningfully engage in treatment programmes to address the risk factors.

Conclusion

[55]   So all of this means that you are sentenced to a total sentence of 10 years and four months’ imprisonment and a minimum period on the lead charge of using a firearm against a law enforcement officer of five years. I need to allocate that sentence amongst the various individual  charges.  I  do  so  by  allocating  seven  years  and 10 months on the sentence of using a firearm against a law enforcement officer; on the related charges of unlawfully taking a motor vehicle and discharging a firearm I impose an 18 months concurrent sentence; on the first charge of discharging a firearm with reckless disregard (that is, the events on 31 December) I impose a cumulative sentence of two years’ imprisonment; on the two charges of aggravated assault I impose a cumulative sentence of six months’ imprisonment.

[56]Stand down.

Mallon J

28     Sentencing Act, s 86(2).