R v Kumeroa HC Wanganui CRI 2009-083-3004

[2011] NZHC 459

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-083-3004

THE QUEEN

v

MICHAEL WESLEY KUMEROA AND KELVIN MARTIN KUMEROA

Hearing:         21 February 2011-2 March 2011

Counsel:         Mr L C Rowe for the Crown

Mr C P Brosnahan and Ms A S Brosnahan for Michael Kumeroa

Ms D M Goodlet and Mr J Waugh for Kelvin Kumeroa

Judgment:      6 May 2011

SENTENCING REMARKS OF MALLON J

[1]      Michael  Kumeroa  you  appear  for  sentence  having  pleaded  guilty  to wounding with intent to cause grievous bodily harm,1 injuring with intent to injure2 and common assault.3   Kelvin Kumeroa you appear for sentence having been found guilty of wounding with intent to cause grievous bodily harm4  and injuring with intent to injure.5

[2]      The maximum penalties for this offending are 14 years’ imprisonment on the wounding with intent to cause grievous bodily harm, 5 years’ imprisonment on the

injuring with intent to injure and 1 year’s imprisonment on the common assault.

1      s188(1) of the Crimes Act.

2      s189(2) of the Crimes Act.

3      s196 of the Crimes Act.

4      s188(1) of the Crimes Act.

5      s189(2) of the Crimes Act.

R v KUMEROA HC WANG CRI 2009-083-3004 6 May 2011

Circumstances of the offending

[3]      In Michael’s case the circumstances of the offending are set out in a summary of facts that was agreed before guilty pleas were entered part way through the jury trial in Wellington.   In Kelvin’s case his account of what occurred as per the pre- sentence report is at odds with the evidence heard at the trial and as accepted by the jury.  I proceed on the basis of my assessment of the evidence at the trial and which the jury can be taken to have accepted by their verdicts.

[4]      The relevant events began in the early hours of 2 December 2009 when you two were travelling around Whanganui in a van with Mark Bartlett, Javan Te Amo, Ms Potaka and Ms Bartlett.  You called into a service station where another vehicle, with two male occupants, was also stopped.   One of those males was Mr Fa’alili. Michael saw Mr Fa’alili looking at him.  Michael took exception to that, and walked around to the passenger side of the vehicle that Mr Fa’alili was in and punched him through the window. That gave rise to the common assault charge against Michael.

[5]      After Michael’s punch on Mr Fa’alili Mr Bartlett then intervened saying that he knew Mr Fa’alili and the other male.   Michael said to Mr Bartlett that he had chosen his friends over his family.  After this incident your group headed off to an address where some home brew bourbon was purchased.  The group then headed to Kelvin’s house.

[6]      At Kelvin’s house the home brew was drunk and at some point Michael asked Mr Te Amo if he would like to smoke some cannabis.  Mr Te Amo replied that he did not smoke.  Kelvin responded that it was either “this” (holding up his fist) or “this” (indicating smoking some cannabis).  Michael then punched Mr Te Amo in the nose, causing  it  to  bleed.    Mr Bartlett  intervened  to  stop  the  assault  on  Mr Te Amo. Michael responded by punching Mr Bartlett in the face and head.

[7]      The Crown’s case was that then both of you punched Mr Bartlett in the head causing him to fall to the ground.  Once on the ground, the Crown said that both of you punched and kicked Mr Bartlett a number of times on his head and body and stomped on his head. The assault caused Mr Bartlett to lose consciousness.

[8]      Ms Bartlett  had  been  just  outside  the  house  with  Ms Potaka  when  the punching had started.  She came inside very upset, yelling at Mr Te Amo to get out of there.  Kelvin ushered her out of the room, and Michael then punched Mr Te Amo once more to the face.  The Crown case was that Kelvin then punched Mr Te Amo several times in the head, also knocking him to the ground.

[9]      The assaults at Kelvin’s house on Mr  Te Amo and Mr Bartlett gave rise to the injuring with intent to injure and the wounding with intent to cause grievous bodily harm charges respectively.

[10]     Mr Bartlett was guided to Michael’s car, and Michael and Mr Bartlett left the house.  Mr Bartlett later woke up on the bank of the Whanganui River, having rolled down a steep bank.  He managed to walk up the bank and to a nearby house in a distressed state.  The elderly couple that lived there assisted him and the police and an ambulance were called.  The Crown had charged you both with attempted murder of Mr Bartlett but you were both discharged on this part way through the trial when the Crown accepted that it could not prove your involvement in rolling Mr Bartlett down the bank.

[11]     As a result of the assaults, Mr Te Amo suffered a cut lip and a swollen face. He could not  eat for two days afterwards and  nor could he work.    Mr Bartlett suffered bruising, grazes and cuts. The photographs taken of Mr Bartlett at the house after he had climbed up the bank show him in a pretty bad state although some of the injuries may well have been sustained after Mr Bartlett left Kelvin’s house.  In any event the injuries turned out to be quite superficial as, although Mr Bartlett was admitted to hospital for observation, he was discharged later in the day.

[12]     There is some dispute on behalf of Kelvin as to his exact involvement in the assaults.   The Crown submits that the evidence showed that Kelvin participated equally with Michael in the actual violence inflicted on Mr Te Amo and Mr Bartlett. Kelvin, both through the pre-sentence interview and in the written submissions presented on his behalf, submits that he was not as significantly involved in the violence.   In my view, it is not clear on the evidence precisely what your exact involvement in the violence was.  It is however clear from the evidence that the jury

accepted, that you did join in on the attack in respect of both  Mr Te Amo and Mr Bartlett by inflicting one or more blows to each of them and it was more than minimal involvement.  Kelvin I note that you blame your brother but you were the one who indicated a punch if Mr Te Amo did not smoke cannabis.  I know from your pre-sentence report Kelvin, that you say you were joking and were not intending to indicate this but the evidence about this at the trial was quite clear and Michael did in fact respond by punching Mr Te Amo.  Kelvin, you chose to back up your brother and to join in rather than to intervene to help to stop the violence.  There was simply no evidence that you tried to defuse the situation.

Personal circumstances

[13]     I now turn to consider the personal circumstances of each of you.

Michael

[14]     Michael, you are 27 years of age.   You describe your childhood as “not good”.   You were exposed to violence from an early age.   You say you grew up thinking “hitting people was normal”.   I note that you have had periods of employment in between periods spent in prison.

[15]     In your pre-sentence report your account of what occurred varies in some ways in respect of the summary of facts.   I am proceeding on the basis of the summary of facts which was agreed before the guilty pleas were entered and which is consistent with the evidence at trial.

[16]     You have written apology letters.  These are to Mr Te Amo, Mr Bartlett and to your victims generally.  In those letters you apologise for the suffering you have caused  and  you  ask  for  forgiveness.    You  apologise  as  to  the  effect  that  your offending  has  had  on  your  family  generally,  of  which  both  Mr Te  Amo  and Mr Bartlett are a part.  You express willingness to have meditation with any of your victims.

[17]     The pre-sentence report writer refers to your criminal history.   You have a number of convictions, including a number for violent offending, the most serious

being a conviction for manslaughter in 2001.  Relevantly you also have convictions for common assault in 2005 and in 2007 and a conviction for participating in an organised criminal group relating to the 2007 events which resulted in the death of the infant Jhia Te Tua.  The report writer assessed you as having issues with both alcohol and drugs.  You agreed with that assessment.  You also agree that you need help to deal with your anger issues, and that time in prison will give you an opportunity to do so.

Kelvin

[18]     Kelvin you are 31 years of age.  You too have suffered from the abusive and violent upbringing you have had.  In the report you minimise your involvement with the offending, in that you blame your brother and say you were trying to stop him from assaulting Mr Bartlett.  As discussed already I do not accept your account as it is inconsistent with the evidence at trial.

[19]     Ms Windsor, who has worked with you in the past in the social services area, was interviewed by the report writer.  She said that you have huge potential and that you have taken part in a number of programmes in the past to try and deal with your issues.  There was also positive evidence about that at the trial. You have undertaken a wide range of employment in the past.   In 2007 you graduated with a degree in Maori Studies.  These things support Ms Windsor’s view of your potential.  She does say that you need real support, but that you also need to take responsibility for your actions.  She identified interactions with your family as being one of the causes of your offending, something which it seems you recognise.

[20]     The report writer assessed you as having a propensity towards violence and problems with alcohol and drugs.  Your criminal history shows that.  It is extensive. There are a number of convictions for violence before the 2001 manslaughter conviction, which is the most serious of your previous convictions.  Since then most relevantly there is a conviction for common assault in 2009.  You are assessed as having a medium to high risk of re-offending.  However, the report writer also states that you presented as being motivated to change, and disappointed that you had reverted to your old ways.

Victim impact

[21]     Both Mr Te Amo and Mr Bartlett have written victim impact statements for the purposes of this sentencing.

[22]    Apart from their description of the physical injuries there are the other consequences of your attack.  Mr Te Amo says that he does not consider that he has been the same since the assault.   He says that he is now worried about people confronting him, and in particular your associates, and for that reason he has moved to Hamilton.

[23]     Similarly, Mr Bartlett says that he has not been the same since the assault. He now does not go out so much, and finds himself thinking about whether he could have died.  He says that the assault was the most frightening experience of his life.

Starting point

[24]     There is no dispute between the counsel here about the relevant sentencing principles and purposes and the Crown rightly emphasise here deterrence and protection of the community.  This was unprovoked, serious and mindless violence fuelled  by  intoxication.    Such  violence  is  all  too  prevalent  in  our  community. Mr Bartlett is fortunate that it did not end with him floating in the Whanganui River unconscious.   Although I am sentencing you two on the basis that you were not involved in whatever happened to Mr Bartlett after he was driven from Kelvin’s house, the violence at the house is where the events began.

[25]     I need to set a starting point for your attack on Mr Bartlett at the house, this being the most serious of the convictions on which I am sentencing the two of you.

[26]     Starting  with  Michael,  I  agree  that  there  are  three  relevant  aggravating features, namely a sustained and unprovoked attack which continued on Mr Bartlett when he was on the ground, blows to the head and that there were two of you involved in the attack.  However, each of those aggravating factors are at the lower end of their type.   The attack involved a number of blows but the injuries were, fortunately, superficial.   The worst aspect of them was the blows to the head but

again there were no serious head injuries.  There were two of you involved in the attack when in other cases there can be a greater disparity between the attacking group and the victims.

[27]     Your counsel submitted that a starting point of three to four years would be appropriate.  In light of the three aggravating features I consider that would be too light under the guidelines set by the Court of Appeal.6    The Crown submits that a

starting point of four to six years is appropriate.7    I agree and consider that this is

consistent with the cases of a comparable nature that I have reviewed which will be footnoted in the written sentencing remarks.8

[28]     Kelvin, your counsel submits that you were less involved and therefore less culpable.  She submitted that a starting point of three and a half to four years would be appropriate compared with the Crown’s starting point of four to six years.  I think this is a case where to adopt a lower starting point than your brother would be to

make  fine  distinctions9   which  are  not  warranted.    Your  involvement  was  not

minimal.  You joined the attack rather than diffused it.  As Mr Bartlett said “it was both” of you.   I therefore consider the same starting point of four to six years is appropriate.  I will come back to where in that range I consider each of you to sit.

[29]     Turning next to the attack on Mr Te Amo, I again view your culpability as similar.   The Crown submits that the starting point should be 12 to 18 months because the attack was unprovoked, forceful and caused moderate injuries.10   As the sentence for this should be concurrent but the overall sentence must reflect the totality of the offending the Crown submit an uplift of nine months to one year should be added to the four to six year range.  Michael, your counsel submits that a

six to nine months uplift is appropriate.  Kelvin, your counsel submits that the uplift should be six months.  My view is that the appropriate uplift is nine to 12 months

bearing in mind the moderate injuries and the totality principle.

6      R v Taueki [2005] 3 NZLR 372.

7      Top of band one/bottom of band two in R v Taueki.

8      R v Finn [2007] NZCA 257; R v Karlytsky [2009] NZCA 230; R v Heitia [2009] NZCA 398;

R v Haua [2007] NZCA 446; R v Uili CA148/06, 26 October 2006; R v Gatoloai [2007] NZCA

319.

9      R v Walker [1973] 1 NZLR 99 (CA) at 100; Solicitor-General v Lam (1997) IS CRNZ 18 (CA)

at 25.

10     R v Harris [2008] NZCA 528; Neho v R [2010] NZCA 8.

[30]     Michael, in your case there is also the assault on Mr Fa’alili.  Your counsel submits a further one month to six weeks would be appropriate.  The Crown submits a cumulative sentence of three to four months should be imposed but given the totality principle only a small uplift to the overall sentence is required.  I am going to impose a concurrent  sentence in  respect  of that  assault.    Michael’s  unprovoked violence began at the service station and that was the first point at which Mr Bartlett sought to intervene to Michael’s annoyance.   His later intervention in relation to Mr Te Amo resulted in the violence upon him.  I consider an uplift in the one to two month range to be appropriate.

[31]     Therefore, before considering personal aggravating and mitigating factors, that would mean a sentence for Michael of between, by my calculations, four years

10 months to seven years two months and for Kelvin of between four years nine months and seven years.  A midpoint is around the six year imprisonment mark and Michael’s  starting  point  should  be  slightly  higher  because  of  the  assault  on Mr Fa’alili.

Personal aggravating and mitigating factors

Michael

[32]     Turning to consider Michael’s personal aggravating factors, there are two of them.  They are your criminal history and the fact that this offending occurred soon after your release from parole.  It occurred two months after your release from parole from the being involved in an organised criminal group charge.  Your conviction for manslaughter is of real concern when looking at the similarities in the two sets of the offending.    I  am  going  to  read  from  a  Court  of Appeal  judgment  about  those

similarities. The Court of Appeal said this:11

The similarities are a trivial matter provoked an irrational response from Michael Kumeroa.  He initiated the violence.  Kelvin Kumeroa weighed in to  support  him.    Both  inflicted  serious  violence  to  the  victim.    They continued their joint attack when the victim was defenceless on the ground. The attack continued to the point where the victim became unconscious.  In the previous incident the victim died.  In this case the Crown contends the respondents' believed Mr Bartlett was dead.

11     R v Kumeroa [2010] NZCA 496 at [41].

[33]      I put aside the last part of what the Court of Appeal there said because that was not of course the evidence at trial and you were discharged in relation to those later events.  Nevertheless there are some striking similarities.  You could say then that you were young and immature and insufficiently equipped to deal with your violent tendencies.  But ten years on here you are carrying on with similar offending. You also have convictions for assault in 2005 and 2007 and your most recent conviction  for  participating  in  an  organised  criminal  group.    These  aggravating factors indicate a need for particular individual deterrence and therefore a sterner sentence than you might otherwise have received.   For that reason I consider a sentence at the top of the appropriate range to be appropriate.  That would mean a sentence of a bit over seven years, effectively a one year uplift on the midpoint in the range I identified earlier.

[34]     The mitigating factor is your guilty plea.  The Crown and your counsel differ about the discount that is appropriate.  However, from the outset I accept that you accepted it was you who had inflicted the violence. That shows a level of acceptance of responsibility for which some credit is due.  A guilty plea on the count relating to Mr Te Amo was intimated six weeks after committal.  From the outset a guilty plea was expected in relation to Mr Fa’alili.  A guilty plea was also intimated at that time in relation to Mr Bartlett if the charge was amended to a charge of injuring with intent to injure.  That is a lesser charge than you were eventually convicted on but I accept  your  counsel’s  submission  that  this  was  complicated  by  the  charge  of attempted murder on which you were eventually discharged.   I intend to discount your sentence to six years’ imprisonment in light of the acceptance of responsibility indicated by the pleas and/or the intimation of them.

[35]     I note your expressions of remorse.  It is certainly good that you have done that but I do not see them as warranting any mitigation to the sentence on this basis. So that for you gives rise to an end sentence of six years’ imprisonment.

[36]     I have given serious consideration to whether I should impose a minimum period of imprisonment.  I have considered whether the offending is so serious that release after one-third of your sentence would obviously be an insufficient response. The  seriousness  of  your  offending  here  is  elevated  because  of  your  previous

offending and therefore the opportunity you have had to respond to the sentences previously imposed on you.

[37]     However,  on  balance  I  have  decided  against  a  minimum  period  of imprisonment.  I have already taken into account your previous offending and that you were on parole in relation to the sentence that I have set.  It has been uplifted because of that.  While one might be sceptical about your apologies and your stated desire to seek help I do see them as steps in the right direction.  A minimum period of imprisonment might delay your access to suitable programmes available to you.  I therefore consider it is better to leave the decision as to the appropriateness and timing of your release to the Parole Board.

Kelvin

[38]     Kelvin, there is one personal aggravating factor for you and that is your previous convictions.   You have more of them, although they mostly pre-date the

2001 manslaughter conviction.  Unlike your brother you were not on parole at the time of this offending and it does seem from the evidence at trial and from the remarks in the pre-sentence report that you have been trying to stay away from prison  and  that  you  are  aware  of  the  bad  influences  that  have  triggered  your offending.  I therefore consider that there is not quite the same stern response needed to this offending as with your brother.  A middle point in that range, that is six years, is appropriate for you.

[39]     On the other hand you do not have the mitigating factor of a guilty plea.  Like your brother I note that you have expressed remorse and are concerned to have found yourself back where you started.  I am not going to allow a separate discount for that but I do view it as relevant to the minimum period of imprisonment issue.   So, overall I consider that the end point should be the same as your brother.

[40]     As I have not imposed a minimum period of imprisonment on your brother I do not think it would be appropriate to do so for you either.  I think that that would be inconsistent with some of the positive steps that I have mentioned already.

[41]     So, that’s the reasons and I am now going to ask you both to stand while I

formally impose your sentences.

Sentences

[42]     Michael Kumeroa, you are sentenced to a term of imprisonment of six years on the charge of wounding with intent to cause grievous bodily harm.   You are sentenced to a concurrent term of imprisonment of one year on the charge of injuring with intent to injure. You are sentenced to a concurrent term of imprisonment of two months on the common assault charge.  This means an overall sentence of six years’ imprisonment.

[43]     Kelvin Kumeroa, you are sentenced to a term of imprisonment of six years on the  charge  of  wounding  with  intent  to  cause  grievous  bodily  harm.    You  are sentenced to a concurrent term of imprisonment of one year on the charge of injuring with intent to injure. This means an overall sentence of six years’ imprisonment.

[44]     You may both now stand down.

Mallon J