R v Leota
[2013] NZHC 2857
•29 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-090-004304
CRI-2011-004-000117 [2013] NZHC 2857
THE QUEEN
v
PAKA JUNIOR LEOTA
Charges: Wounding with intent to cause grievous bodily harm; Wounding with intent to injure Counsel:
MR Walker and MJ Hammer for Crown
NG Cooke for PrisonerSentenced:
29 October 2013
SENTENCING NOTES OF BREWER J
Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Nigel Cooke (Auckland) for Prisoner
R v LEOTA [2013] NZHC 2857 [29 October 2013]
Introduction
[1] Mr Leota, you appear for sentence today on two charges. On 20 August
2010, you wounded Mr Talaia with intent to cause him grievous bodily harm. On
12 March 2013, you pleaded guilty to that charge. This offence carries a maximum penalty of 14 years’ imprisonment. On 19 April 2011, you wounded a prison officer with intent to injure him. You were found guilty by a jury of that offence on
14 February 2013. The maximum penalty is seven years’ imprisonment.
[2] There is a procedure which I have to go through now in describing how I get to the sentences I will impose on you. If I were just talking to you then I would be shorter and I would explain myself in more direct language. But I am also delivering this sentence so that the lawyers understand the legal reasons, so it will take a bit longer than I otherwise would like.
Facts
Wounding with intent to cause grievous bodily harm
[3] At approximately 10:30 pm on 20 August 2010, you approached Mr Talaia, who was working in City Road in Auckland CBD as a minder of prostitutes. You attacked him. You struck Mr Talaia a number of times in the face. You kicked him in the legs. Mr Talaia grabbed you in a hug in an attempt to defend himself and you both fell to the ground. You pulled out a metal object, probably a screwdriver, and stabbed Mr Talaia in the head, causing a puncture wound to his temple and he began to bleed a lot. You continued to punch Mr Talaia about the head in a prolonged and very violent attack. During the attack you demanded payment of $300.
[4] There was somebody else present. That person knew Mr Talaia and pleaded with you to cease the attack and even offered to pay the money. He managed to separate you and Mr Talaia very briefly. But you grabbed Mr Talaia again and continued your attack. Mr Talaia lost about a litre of blood during the struggle, lost his strength and fell to the ground.
[5] You left the area and changed out of your clothes. You were found a few streets away from City Road about two hours later.
[6] Mr Talaia was taken to hospital. He had the puncture wound to his temple, his skull was fractured, and he suffered a brain bleed. He required surgery to remove a bone fragment and to clean out the blood which was overlying his brain and the bruising within the brain. He spent four days in hospital and attended hospital as an out-patient for a short time.
[7] You initially claimed you acted in self-defence, but you later pleaded guilty.
[8] As I discussed with your lawyer, Mr Talaia was fortunate to survive. He would not have survived if the surgeons had not been able to remove the bone fragment and relieve the pressure that the bleeding into the brain was causing. If he had died you would have been charged with murder.
Wounding with intent to injure
[9] On 19 April 2011, you were in the receiving office at the Auckland Central Remand Prison. During a strip search, you became abusive and obstructive towards Mr Craig, who was a relatively inexperienced corrections officer. He continued the search. As Mr Craig turned away to hand a property bin to another officer, you punched him to the left side of his face breaking his jaw in two places. He required surgery to set the broken bone and was in hospital for three days.
[10] I will take it, Mr Leota, that this was not a random attack by a prison inmate on a guard. I have listened to what your lawyer has said and I have listened to what the Crown lawyer has said about the evidence that was called at your trial. I accept that there had been a previous incident where the prison officer behaved completely unprofessionally by lying on top of you while you yourself were lying on a mattress in your cell. For the purpose of sentencing, I accept that that was an incident which you were unhappy about and having him strip search you was the catalyst for your violence.
Approach to sentencing
[11] Where a Judge has to sentence a prisoner on two charges and those charges are unrelated, the Judge should give a separate sentence for each charge. That is what I am going to do today.
[12] I will first set a starting point for each offence. The starting point is set by looking at the actual offending. I will assess whether there are any factors personal to you that require me to either reduce or uplift the starting points. I will then assess what adjustment needs to be made to your sentences to reflect the totality of your offending. Finally, I will consider the Crown’s application that you be sentenced to preventive detention.
Principles and purposes of sentencing
[13] When Judges look at a case, they do not simply pluck a sentence out of thin air. There is a statute called the Sentencing Act 2002. That statute sets out the principles and purposes of sentencing.1 In each case, a Judge looks at the Sentencing Act and then looks at what has been done by the offender and decides how to give effect to the requirements of the Sentencing Act.
[14] In your case, I need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; and to denounce and deter your conduct. I also have to provide for the interests of the victim, to protect the community, and to assist in your rehabilitation and reintegration.
[15] That is a lot of words. It means that I have to look at the whole situation and do what I can to both mark what you have done but also not forget about who you
are.
1 Sentencing Act 2002, ss 7 and 8.
Personal circumstances
[16] This is, of course, not the first time you have appeared before the Court. You have a significant criminal record dating back to 1998, when you were only 16 years old. Your convictions include: one notation for possession of a knife, one notation for assault with intent to rob, two convictions for common assault, four convictions for aggravated robbery, one conviction for demanding with intent to steal, one conviction for male assaults female, two convictions for kidnapping and two convictions for assault with intent to injure. You have served 12 sentences of imprisonment, some of which were concurrent with each other. The latest was a sentence of three years nine months handed down on 15 August 2011.
[17] It is because of that record, Mr Leota, that the Crown is saying that you should be sentenced to preventive detention. That is a sentence which would keep you in prison perhaps for the rest of your life. You would only be released if the Parole Board thought that it was safe to do so.
[18] I have read about your background. You have two daughters and you have continued your relationships with their mothers. You are not affiliated with any gang, however you have relationships with people who are associated with a variety of gangs.
[19] You offer little remorse. I have read that the deaths of your eldest brother, father and mother within a short time period and your family group intervention some three years ago has started within you a process of change to live a different lifestyle. That is important.
[20] You have given descriptions of why you have offended on these occasions. So far as the attack on Mr Talaia is concerned, you said there was a territorial dispute between yourself and your victim over the territory to be occupied by your groups of prostitutes. You said that you did not want to use violence but you knew violence was a possible outcome.
[21] The report writer, in relation to that incident, considers that rehabilitation for you is a long-term goal but that your needs can be met through departmental and
community-based treatment programmes. You are considered to be in the early stages of a process where you can change your way of doing things.
[22] You also blame much of your offending on the use of drugs. The report writer notes that you have attempted to minimise your propensity to use violence, suggesting it was drug-related. That is also a matter that the Crown lawyer has highlighted, and it is a matter of concern. People who have lengthy records of violent offending who go around saying to others, “I’m not a violent person; I don’t need to change”, well, people stand back and look at that sort of statement and say, “this person is likely to be a danger to the public because it is never his fault, but he keeps getting involved in violence”.
[23] The report that I am referring to at the moment was written before your intent to injure charge was heard by the District Court. And, of course, in relation to the assault on the prison officer, you blame him for that offending. I have said to you that I will recognise that there was a history between the two of you but that history did not entitle you to break his jaw in two places and send him to hospital. That is why you are sitting there being sentenced today for that attack.
Victim impact statements
Mr Talaia
[24] Mr Talaia has provided a victim impact statement which explains the injuries he has suffered. He says that for the first six months following the attack he constantly suffered headaches and a lack of sleep. He had to go to a clinic to have his headaches treated as well as numbness to the side of his face which continues. He said that he feels scared that you will attack him again. He worries about the security of his family. He can no longer play rugby. He has a permanent indentation in the side of his head and a permanent visible scar. But as at the time he signed his victim impact statement, which was in April of this year, he was able to say that he no longer suffers any medical problems from your attack.
Mr Craig
[25] He had been working as a prison guard for nine months. He has not been able to work since the assault as he was simply too apprehensive about going back and carrying on the job. As at March of this year, he was unemployed.
[26] Mr Craig tells me in his victim impact statement about his ongoing physical, financial and emotional problems. He suffered from constant migraines, although they are now less frequent. He feels like he has been left in limbo and he does not know what his future will be.
Finite sentence
Wounding with intent to cause grievous bodily harm
[27] When Judges start considering the appropriate penalty for offending, there are two resources we look at. The first is what the statute says the maximum term is, and in this case it is 14 years, and the second resource we go to is the case law – what Judges have said in other cases which are similar.
[28] Where the charge is wounding with intent to cause grievous bodily harm, there is a case called R v Taueki,2 which sets out a bit of a blueprint for how offending like yours should be responded to. It sets out a series of what are called bands and each band has a range of imprisonment attached to it.3
[29] The Crown has submitted to me that your offending falls into either the upper end of band two or the lower end of band three and so I should set a starting point of eight to nine years’ imprisonment. Mr Cooke accepts that you fall into band two but his submission is that a starting point of six years’ imprisonment is appropriate.
[30] I consider that your offending falls into band two. I identify the following features of your offending as being aggravating:
2 R v Taueki [2005] 3 NZLR 372.
3 Ibid, at [34]-[41].
[31] You used extreme violence. The attack was prolonged and brutal. An associate of Mr Talaia unsuccessfully attempted to stop the assault. You continued.
[32] Mr Talaia has suffered very serious injuries. As I said, he received a fracture to his skull, with brain fluid actually leaking through his skin. He required surgery. He suffered short-term as well as permanent injuries.
[33] You brought a weapon to the scene, probably a screwdriver. You used it in your attack.
[34] You mostly attacked Mr Talaia’s head. You drove the weapon into his temple, and continued to punch him in the head.
[35] I have considered the cases that the lawyers have referred me to in their written submissions. I will not summarise them.
[36] I know that you received a sentencing indication on 14 June 2012 in the District Court by Judge AA Sinclair. The Judge found that the offending came within the mid-range of band two and would have adopted a starting point of seven years’ imprisonment. You did not plead guilty in reliance on this indication. You waited until March 2013, one month prior to the trial, in order to enter your plea.
[37] Based on the cases I have read, I adopt a starting point of eight years’ imprisonment. I will increase your sentence by one year to reflect your criminal history, bringing the starting point to nine years’ imprisonment. You did plead guilty and that entitles you to a discount. You pleaded guilty a month before trial and, although that was late, I will discount your sentence by 10%, bringing it to eight years and one month’s imprisonment on this charge.
Wounding with intent to injure
[38] You have also been found guilty of wounding with intent to injure. The case that sets out the sentencing bands for that sort of offending is called Nuku v R.4 The
Crown submits that an appropriate starting point is in the range of five to six years’
4 Nuku v R [2012] NZCA 584.
imprisonment. Your lawyer suggests that a sentence of 12 months cumulative on the sentence imposed for your offending relating to Mr Talaia is appropriate.
[39] You had a sentencing indication from Judge Sinclair for this offence as well. The Judge considered a starting point of two years and six months’ imprisonment would be appropriate.
[40] In my view, the Crown’s suggested starting point is too high. I say that for two reasons, one of which is the fact, as I find it, that your offending did come from unprofessional conduct by the prison officer. The other is how I regard the case law. I consider that you fall into the upper end of band two of Nuku.
[41] There is another case called Karetu v R.5 In that case the offender appealed his sentence for, among other charges, wounding a prison officer with intent to injure. In that case, the prisoner had engineered a confrontation with a prison officer in the dining room and blind-sided him with a single punch. The punch left the officer with two open wounds inside his mouth which became infected and ruptured. The punch also caused a brain injury which was not diagnosed until after the officer became unwell. He needed treatment and was off duty for some months. The Court of Appeal did not interfere with the starting point of three years adopted by the District Court.
[42] I think, for the factors I have mentioned, that your offending is slightly less culpable than was the offending in Karetu. I, therefore, consider, as did Judge Sinclair, that a starting point of two years and six months’ imprisonment is appropriate.
[43] I do not consider that there are any mitigating features personal to you that mean I should discount your sentence. I have already uplifted your sentence in relation to Mr Talaia for your previous convictions so I will not uplift your sentence
on this charge. That would be double-counting.
5 Karetu v R [2013] NZCA 408.
[44] Your total sentence, therefore, would be 10 years and seven months’
imprisonment.
[45] I now have to step back and consider how an overall sentence of 10 years and seven months fits the totality of your offending. Both convictions are for serious violence. The incidents occurred eight months apart. They are different in degree and in circumstance. The levels of violence which normally attract this sort of sentence are generally more extreme than the violence you used or involve different factors. So, standing back and looking at 10 years and seven months, I think that is overall too high for what in totality you did. I will reduce the sentence. I choose to do that by reducing the sentence on each charge. For the wounding with intent to cause grievous bodily harm, the sentence will be seven years’ imprisonment, and on the wounding with intent to injure charge, two years’ imprisonment. That makes a total of nine years’ imprisonment. The sentence on each charge is cumulative with the other and also cumulative on your existing sentence of imprisonment.
Minimum period of imprisonment
[46] I consider that the ordinary one-third non-parole period is insufficient. Your criminal record, propensity towards increasing violence and your lack of remorse demonstrate that a minimum period of imprisonment of 50% is necessary in order to protect the community, denounce your conduct, deter you, and hold you accountable.
[47] You will, therefore, be required to serve 50% of your sentence, being four years and six months, before you are eligible for consideration for parole.
[48] I now have to consider whether, instead of imposing that sentence, I should impose a sentence of preventive detention.
Preventive detention
[49] It is important to note that the primary purpose of a sentence of preventive detention is not to punish offenders but to protect the community from those who pose a significant and ongoing risk to the safety of members of the community in the future.
[50] There are three factors I have to look at. The first two are obviously satisfied. You are over 18 years of age and you have been convicted of a qualifying offence.
[51] I have already described your history of offending. That is important because it is relevant when I come to look at where you fall under the third factor I have to consider, and that is whether you are likely to commit another qualifying offence if you are released at the sentence expiry date of a finite sentence.
[52] So you see, Mr Leota, that is really the big issue I have. The big issue I have is how likely are you to inflict violence on another person if I sentence you to a term of imprisonment as opposed to preventive detention? If I conclude that you are a violent person who refuses to accept that you are a violent person, and will take no interest in programmes that the prison is likely to offer, then I will conclude that you are not safe. I will conclude that if I sentence you to a term of imprisonment, at the end of that term you will get out and you will hurt someone else. If that is the conclusion I come to then I should sentence you to preventive detention.
[53] I will go through the factors now:
(a) Any pattern of serious offending disclosed by your history: You have been offending in a serious and violent manner since 1999. Your convictions for aggravated robbery and kidnapping have been met by sentences of imprisonment from the District Court, but you have remained undeterred. Dr Duff notes that the longest period you have spent in your adult life offence-free was between your conviction on
20 May 2003 for kidnapping and 3 December 2008 for male assaults female. The report records that you became a father during that time and you stopped using drugs. That fact demonstrates that you have at least some ability to change when you think that you should. However, I note also that your violent offending seems to be getting worse in both severity and frequency. Overall, I am satisfied that your history discloses an increasingly worrying pattern of serious offending.
(b)The seriousness of the harm to the community caused by your offending: Certainly the victims of the offending for which you appear today have not only suffered harm to their physical persons but also to their emotional and financial wellbeing. Your propensity to engage in aggravated robbery and kidnapping is of particular harm, and demonstrates your willingness to use coercion and fear to manipulate your victims into giving you what you want.
(c) Information indicating a tendency to commit serious offences in the future: I have reports from Dr Duff, Ms Visser and Ms Biswell:
(i) Dr Duff has identified your “entrenched anti-social lifestyle”
as being at the heart of the risk of you offending in the future
— your drug use, involvement in the sex trade, lack of formal education and inability to hold down a job in particular. Dr Duff has also noted that you lack any practical plans for employment on your release, suggesting that you will fall back into your old habits. Dr Duff does suggest, however, that you have been drug-free in the last two years of your imprisonment and he does find in you an apparent motivation to change. The doctor also makes the important point that you are yet to address your violence problems by any full course of treatment during any of your time in prison. This is due to, what he calls, your “quite profound” lack of insight into the true causes of your offending, which is certainly related to your drug abuse but not entirely attributable to it. Dr Duff expresses the final view that a term of imprisonment would be preferable to a sentence of preventive detention.
(ii)Ms Visser has described your attendance at several alcohol and drug treatment programs while in prison. As the Crown lawyer noted, there was a worrying failure to complete a course at the Violence Prevention Unit in 2002, which was stopped as a result of a violent altercation with another inmate
much younger then. Ms Visser has recognised that you are now willing to undergo violent offenders’ treatment to address your problems with violence. She considers that you have a moderate probability of serious violent offending if released back into the community. She considers that possibility, as does Dr Duff, as being founded on the risk that you will not make real changes in your life on release and begin taking drugs as you have in the past.
(iii)Ms Biswell has provided a helpful summary of your attempts at treatment in 2002, 2006, and 2009, all of which failed due to your unwillingness to engage with treatment to a variety of extents. She does note, however, that in 2009 you attended four sessions from May to June and you were noted to be engaging actively. An assessor at the time considered that your ability to “strengthen [your] understanding and management of violence remained fragile and emergent”. As with the other two report-writers, Ms Biswell considers you pose a moderate or moderate-high risk of re-offending.
(d)The absence or failure of efforts by you to address the causes of your offending: I have already talked about the history of your attempts as set out by the report writers. You have demonstrated an ability to complete drug rehabilitation courses, but you have failed repeatedly at courses aimed at the treatment of violence. You are now suggesting that your attitude has changed and you are willing to look at courses dealing with the causes of violence.
(e) The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society: I have noted that this principle has weighed heavily with Dr Duff and with Ms Visser. They both consider that a lengthy sentence would sufficiently address your current offending. However, that recommendation is premised on the
offending and shown some capacity to engage with treatment when sufficiently motivated.
[54] Mr Leota, I have found your case to be a difficult one. I have a tendency to think that how a person has acted in the past is the best predictor of how they will act in the future. But largely because your previous record of violence does not have the hallmarks of extreme use of force and brutality which we see in other offenders, I am going to give you the benefit of the doubt. I have decided that a sentence of preventive detention is not justified in your case. Despite the effects your current offending has had, the worrying escalation of it, and your long record of criminal offending, I take into account comments that you have the ability to change. However, you should be in no doubt whatsoever that if there is further offending it is most unlikely that a Judge would decide that preventive detention was not the best option for you, or at least would consider it was the best option for everybody else.
[55] There is one other point I would like you to consider. You now have three first strike warnings. It is just luck that you are not now before me on a second or third strike. The luck is simply the timing of the first of the first strike warnings that you received. If the timing had been in a different order, you would either be sentenced without the possibility of parole or you would be facing sentence for the statutory maximum without the benefit of parole. Instead of going through all of the careful analysis that I have, I would simply be pointing at the statutory maximum and saying that is what you are going to do because that is what the law would require on a third strike. You do not want to come back on a second or third strike.
Result
[56] Please stand.
[57] Mr Leota, on the count of wounding with intent to cause grievous bodily harm, you are sentenced to seven years’ imprisonment. On the count of wounding with intent to injure, you are sentenced to two years’ imprisonment. These sentences are to be served cumulatively, resulting in a total sentence of nine years’
served four years and six months’ imprisonment.
[58] These sentences are to be served cumulatively with one another and with the current sentence you are serving for aggravated robbery and kidnapping.
[59] I am told that you have outstanding fines of $13,460. It is pointless for those to remain and so I remit them. You may stand down.
Brewer J
3