R v Laumemea

[2012] NZHC 651

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2006-031-001553 [2012] NZHC 651

THE QUEEN

v

SOLA LANCE LAUMEMEA

Hearing:         28 March 2012

Counsel:         E Killeen for the Crown

P Surridge for the Prisoner

Judgment:      28 March 2012

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, PO Box 31, Palmerston North 4440. Email:  [email protected]

Surridge & Co, PO Box 50525, Porirua 5240. Email:  [email protected]

R V LAUMEMEA HC PMN CRI-2006-031-001553 [28 March 2012]

[1]      Mr Laumemea, you appear for sentence today on three very serious charges. They are burglary, for which the maximum term of imprisonment is 10 years’ imprisonment, robbery also 10 years’ imprisonment and aggravated wounding where the maximum penalty is 14 years’ imprisonment.  You were found guilty after a jury trial in this Court in February 2012.

[2]      The complainant was 66 years old and on 7 November 2006 at about 9.30 pm was alone in bed in his house in Levin.  He heard his dog growling.  This continued for some time and then looking up he saw someone standing in the hallway by his bedroom door.   He could not see very clearly because he was not wearing his glasses.   He told the person to leave as he got out of his bed and approached the person.  As he went towards the hallway he was hit in the face and fell to the floor. While on the floor a sheet or a similar item was thrown over him. A foot was placed on his head and a person demanded, “Where’s the money old man?”

[3]      After being held there for a while he managed to get up and go into the hallway and throw a brick at one of the intruders.  He was then grabbed and thrown to the ground again.  An ornamental axe was removed from the wall and he was hit on the head with it.  The force of the blows were such that the axe broke into pieces. I add that this was a wooden axe of relatively light construction.   Demands were made for his car keys and other items.  At this stage he was being kicked around the torso by the intruders.

[4]      There were clearly two or more people present.  The complainant heard one of them say, “Take it easy, you’ll kill him.”  There were demands, not only for the keys to the car, but for the keys to the briefcase.  When the complainant was asked how many times he would have been kicked he responded, “Enough to crack a hip and have to get a replacement and broken ribs, that’s about it.”

[5]     At some stage the complainant lost consciousness.   When he regained consciousness he was covered in blood.  He managed to get up and go to a nearby house and he received neighbourly assistance.  Eventually he was taken to hospital. He received stitches for a long wound to his scalp.  He was severely bruised in his

face and around his body.  He suffered damage to his ribs and as I have recounted ascribes his hip replacement to the injuries he suffered.

[6]      A number of items had been stolen from his house including his valuable Jeep Cherokee motor vehicle worth approximately $40,000, money, his watch and his cellphone.  He was also growing cannabis plants in a shed. These may have been a motive for the robbery.  Some cannabis was taken.

[7]      Mr Laumemea, you were located a short time after the break-in and assault driving the complainant’s motor vehicle nearby.  You claimed that the motor vehicle belonged to someone else and refused to give details to the Police.  You refused to accept  that  you  had  been  involved  in  the robbery and  maintained  that  position through the trial.  You gave evidence and in the course of that accepted that you had been put in charge of the Jeep, but denied participation in the burglary and the assault.

[8]      The jury clearly rejected your evidence and in your discussions with the probation officer  for  your pre-sentence report  you have accepted that  you  were indeed involved in going into the house and participating in the robbery.  However, you have stated in that pre-sentence report that you were the person who made the remark that was overheard by the complainant asking the kicker to be careful in case he killed him.

[9]      I have victim impact reports from both the complainant and his son and daughter-in-law.  They movingly describe how terrible for them the assault was and the consequences that followed.  The complainant was unable to continue living in his home.   The life he was developing in Levin following his wife’s death the previous year was destroyed by your actions.   He had to go and live with his son putting great strain on him and his wife.  It seems that for at least a year after the attack he was gravely affected psychologically and extremely depressed and unable to function in a normal way.  Fortunately, over the last couple of years his life seems to have improved somewhat.  Nevertheless, there is no doubt that what you did has forever affected both him and his son in a very bad way.

[10]     In approaching this sentencing I treat the aggravated wounding as the lead count on which I should assess the correct sentence, while taking into account all the offending in the round and the other charges.

[11]     Counsel  have  adopted  this  approach  and  accept  that  the  decision  of R v Taueki[1]  as of particular relevance.  Obviously I take into account the orthodox principles  set  out  in  the  Sentencing Act  2002  of the need  for  denunciation  and deterrence which arise when there is such serious offending.   But I also need to consider your offending in the light of the framework set out in R v Taueki.  I have to assess what is known as the starting point, which means the correct sentence for your offending without taking into account factors relating to you personally.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[12]     In R v Taueki there are three categories set out for sentencing purposes.   I have no doubt that you fall into the third category which is the most serious.  That is because of the number of aggravating factors that feature in your offending.

[13]     Ms Killeen for the Crown has identified no less than eight factors which she says are relevant.   She submits that the correct starting point is 10 years’ imprisonment for the aggravating wounding, uplifted to 11 and a half years to take into account the dishonesty aspects in the overall offending.  She also submits that there has to be an uplift for your previous history of offending and for the fact that you  had  been  recently  released  and  were  still  on  parole  conditions  when  the offending took place.

[14]     Your counsel, Mr Surridge, who has served you very well and said all that can be said for you submits that the starting point is more appropriately in the area of

10 years’ imprisonment.  He submits that there should be some discount from that to take into account the fact that it has not been shown that you were the principal offender.

[15]     The aggravating factors that I single out in particular in assessing culpability are as follows.  First, I combine extreme violence and the seriousness of the injury

inflicted to avoid any possibility of duplication.  There was the use of weapons and I

refer there to the ornamental axe, while noting it was not a metal axe.   It was nevertheless a weapon.  It was the use of the weapon to hit the victim to the head which is a third aggravating factor.   Fourth, there was the facilitation of the other crime of robbery which is reflected in the robbery and burglary charges.  Fifth, the multiple attackers and sixth, the undoubted feature of home invasion.

[16]     Having said that, it can be noted that not all aggravating factors are equal and in relation to some of these they are not as serious as they may have been.  I mention in particular the fact that the weapon used was not a particularly dangerous weapon given its nature, and that the head was not the subject of a particular and ongoing attack.  Nevertheless, this was very serious violence offending.   I regard you have been fully involved in the robbery.

[17]     If  you  were  the  person  whom  I  was  satisfied  had  done  the  kicking  or principal offending I would have picked a starting point in the vicinity of 11 years’ imprisonment.

[18]     The question is whether I should treat you as a person who inflicted the serious violence, or rather whether I should treat you as a person who, while participating and assisting, was not administering the primary violence.

[19]     I should say immediately that I cannot accept Mr Surridge’s submission that I should regard you as the person who made the remark about being careful not to kill the complainant.  I would have to be satisfied on the balance of probabilities that this were so.  In your evidence you denied being involved in the offending at all.  I have nothing beyond your say-so to the probation officer on the point.  It is clear that you have already been prepared to say things that are not true in your evidence and I am not able to accept on your assertion to the probation officer that you made that remark.

[20]     I also note that the blood stains on your body, including quite heavy blood on the top front of your shoes and blood spots that can be seen as projected blood spots that have come into contact with your clothing immediately following an impact, indicate you were close to the kicking and the violence.  There was also blood on

your gloves.  But I take into account the complainant’s account of what the person or persons assaulting him were wearing.

[21]     In my assessment of what happened, I also take into account what I saw of you in the witness box and my own impressions of you.  I have decided that I should give you the benefit of the doubt on the point of whether you were the principal kicker.   I have no doubt that you were encouraging and assisting, at least up to a certain point in the assault on the complainant.  However, I am not satisfied that you were the principal violent offender. Your culpability is nevertheless grave, but not as grave as it would have been if you were the person carrying out the primary kicking and striking the victim with the wooden axe.

[22]     So I have decided that I should take these factors into account in assessing the starting point applicable to you.  I have decided that the appropriate starting point for you in the circumstances is nine and a half years’ imprisonment.

[23]     I now turn to matters relating to you personally.  There is nothing much that can be said for you by way of mitigation.  But I can make this observation, informed as it is by my assessment of you when you gave evidence.  I am inclined to accept Mr Surridge’s submission to me that you have turned something of a corner in your life and that there might be some real hope for you now.

[24]     You have a very bad record and the Crown quite rightly submits that I have to take this into account in reaching the end sentence.  You started offending at about the age of 17 and by November 2006 you had 74 convictions of which 21 were for very violent acts, two were for aggravated robbery, three for robbery and there were

10 assault convictions including assaults on the Police.  The only thing that can be said in relation to this very dismal record is that none of the offending seems to have been of the most serious type.  The sentences were often not custodial or if they were custodial were for relatively short terms.  The record would tend to indicate someone with an alcohol problem who was often losing control and acting unlawfully, but it is not the worst sort of record that is sometimes seen, sadly, when sentencing for this sort of offending.  Until this point you have not shown any propensity towards the most serious sort of violence, but there is relevant violence and dishonesty offending.

[25]     I must uplift your sentence for this bad record and I have to also take into account the fact that you had just been released from prison on a sentence of four months’ imprisonment  and  were  subject  to  parole  conditions.    That  is  also  an aggravating factor. You were on a clear warning.

[26]     The Crown  has  suggested  an  18  month  uplift  for these  factors,  whereas Mr Surridge has proposed something in the order of six months.  I have decided on an uplift which I consider to be, if anything, generous of one year.  So that results in an end sentence of 10 and a half years’ imprisonment.

[27]     I now turn to the question of whether I should impose a minimum term of imprisonment on you.  The Crown urges me to do so.  I may impose this minimum term  under  s 86(2) of  the  Sentencing Act  2002  if  I am  satisfied  that  the  period otherwise applicable is insufficient in holding you accountable for the harm you have done, denouncing your conduct, deterring you and other persons and protecting the community from you.

[28]     It has not been easy to make this decision.  I consider imposing a minimum period of imprisonment could be justified.  However, I have decided in my discretion that it is not necessary for me to impose a minimum term.  There are two factors that have dissuaded me from doing this despite the seriousness of this offending.

[29]     The first is, as I have already said, I am not satisfied that you were the primary person carrying out these grievous assaults, although I have no doubt that you were encouraging and assisting.

[30]     Secondly, as  I have said already,  I think there is force in Mr Surridge’s submission that you may have turned a corner and have at last a settled life before you.  You are in a permanent relationship and you have a child.  This had developed shortly before you absconded on bail and left New Zealand for Queensland.   You appear to have settled in Queensland.  There is nothing to indicate you have been involved in further offending and despite the fact that you gave evidence that was not accepted by the jury, and was not credible, I do have the impression that you are far from a hopeless case.   The total disruption of your life and the agony that you

undoubtedly are putting your partner and child through right now by being parted from them, in itself I have no doubt is proving a salutary lesson.

[31]     So these factors lead me to conclude that it is not necessary for me to impose a minimum period of imprisonment, and I do not do so.

[32]     Could you stand up please Mr Laumemea.   On the aggravated wounding count you are sentenced to 10 and a half years’ imprisonment.  On the burglary count you are sentenced to five years’ imprisonment, to be concurrent.   On the robbery count you are sentenced to six years’ imprisonment, to be concurrent.

[33]     So Mr Laumemea I just want to say a few words to you now.   You have committed extremely serious crimes.   You have caused enormous damage to the victim.  You can regard yourself as fortunate that you have not been sentenced to a minimum term of imprisonment.  You now have to make some choices.  You have to choose what you are going to do when you leave prison.   As I have said I am prepared to accept that you are going to go back to your partner and try and lead a decent and lawful life.   I very much hope you do so otherwise you will face real tragedy.

[34]     Please stand down.

……………………………..

Asher J