R v Mead

[2019] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-044-1969

[2019] NZHC 3065

THE QUEEN

v

HIPIRINI BRIAN MEAD

Hearing:

22 November 2019

Counsel:

E J Kerr for Crown

A S Bloem for defendant

Judgment:

22 November 2019

SENTENCING NOTES OF KATZ J

Solicitors:Meredith Connell, Office of the Crown Solicitor, Auckland Bloem & Associates, Auckland

R v MEAD [2019] NZHC 3065 [22 November 2019]

Introduction

[1]        Mr Mead, you appear before me for sentence today having been convicted, following a guilty plea, of one charge of wounding with intent to injure.1

The offending

[2]        You are currently serving a sentence of imprisonment in Paremoremo Prison. The victim of your offending was a fellow inmate.

[3]        On 8 April 2019, you and the victim were in the prison exercise yard with two other prisoners, one of whom was Mr Nuku. You paired off to practise grappling and martial arts techniques with each other. You paired up with the victim.

[4]        For reasons that are unclear, Mr Nuku put his sparring partner in a choke hold until he lost consciousness. Mr Nuku then started stabbing his unconscious sparring partner in the neck and head with a sharp piece of metal (known as a shank) that he had concealed in his pants.

[5]        Your sparring partner, the victim, realised what was happening and attempted to intervene. You prevented him from doing so by punching him in the face, causing him to fall to the ground. You then continued to punch and kick him about the head and body while he was on the ground. The victim managed to get to his feet and again attempted to help the unconscious man being stabbed by Mr Nuku. You continued to prevent him from helping by repeatedly holding, punching and kicking him. The victim suffered a split lip and bruising and swelling to his face.

The starting point

[6]        I will first set your sentence starting point and then adjust that for any factors that are personal to you.

[7]        Mr Mead, you aimed a number of kicks and punches at the head and body of your victim, many of which were while he lay on the ground, trying to protect himself

1      Crimes Act 1961, s 188(2): maximum penalty of seven years’ imprisonment.

in a foetal position. When the victim managed to stand, you continued to hold, punch and kick him. Your attack therefore involved serious violence. It was also unprovoked and gratuitous.2 Your victim was simply trying to help an unconscious man who was being stabbed in the head and neck. I do not accept the Crown submission, however, that your attack was prolonged. CCTV footage indicates that the entire incident lasted for under a minute and ceased once Corrections staff arrived.

[8]        I also do not accept the Crown submission that the attack was premeditated on your part. Although Mr Nuku brought a weapon to the scene, you did not. Nor is there any evidence that you knew that Mr Nuku had brought a weapon with him, or that an attack was planned (if it was).

[9]        Fortunately, your victim’s injuries were relatively minor being a split lip, bruising and swelling. However, the fact that your attack was targeted to the victim’s head, as well as his body, is a significant aggravating feature.

[10]      I also accept the Crown submission that by preventing the victim from going to the aid of another prisoner who was being stabbed, your offending facilitated the commission of a crime, namely grievous bodily harm being caused to that other prisoner.

[11]      Taking these various factors into account it is my view that your offending falls in the upper range of band two of the guideline judgment of R v Nuku.3

[12]       Counsel have referred me to a number of cases they say are broadly comparable to yours.4 The starting points in those cases range from 20 months’ imprisonment to five years imprisonment. I note, however, that in the case where a starting point of 20 months’ imprisonment was adopted5 the charge faced by the defendant was injuring with intent to injure, which is a less serious charge than yours, carrying a maximum of five years’ imprisonment rather than seven.

2      See R v Taueki [2005] 3 NZLR 372 (CA) at [31](a).

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

4      Including Jones v R [2012] NZCA 162; Poi v R [2015] NZCA 300; and EWB v Police

[2012] NZHC 225.

5      EWB v Police [2012] NZHC 225.

[13]      With reference to the cases I have been referred to, and the aggravating features I have identified, it is my view that a starting point of three years’ imprisonment is appropriate.

Factors personal to Mr Mead

[14]      I now turn to consider what adjustments should be made to that starting point to reflect factors personal to you.

[15]      The fact that you offended while serving a sentence for other offending is a recognised aggravating factor.6 At the time of the offending you were subject to a sentence of seven years and six months’ imprisonment for sexual connection with a young person under 16. You were also subject to cumulative sentences of four months and one month for common assault and wilful damage respectively. An uplift is warranted in such circumstances. The Crown accepts, however, that your previous convictions do not warrant an additional uplift.

[16]      In terms of mitigating factors, I have been provided with a comprehensive and helpful cultural report.7 I have also considered the Provision of Advice to Courts (“PAC”) report and your letter to the victim, expressing a degree of remorse.

[17]      The cultural report makes sad reading. Out of respect for your privacy I am not going to go into detail. I note, however, that you were raised by two whāngai mothers whom you speak very highly of. Nevertheless, there were violent and traumatic incidents in your childhood and the cultural report explains how that background has caused you to minimise violence and effectively become “immune to violence as [you were] so used to it”. You experienced significant abuse growing up, including in particular very serious abuse in foster care. You have also been involved in gang life from a young age, as is regrettably common with young men who have experienced deprivation in their childhood.

[18]      You are now 24 years old and both the cultural report and the PAC report indicate that you do have some rehabilitative prospects. In terms of the cultural report

6      Sentencing Act 2002, s 9(1)(c).

7      Section 27.

the Crown acknowledge the matters identified in that report but submitted that there is minimal connection between those matters and your attack on your fellow inmate.

The Crown referred to the following remarks of Downs J’s in R v Carr:8

[60]   An offender’s background may arguably extend to what is described  as systemic disadvantage, meaning longstanding deprivations that affect—and afflict—some groups, at least when that background informs the commission of the offence. However, this type of consideration has only a modest effect on sentence when the offending is serious. Indeed, it may have little application, if any. Frequently, other sentencing principles prevail, especially denunciation and community protection. Equally importantly, the law does not accept some groups may use violence—but not others. No other approach is conceivable.

(Footnotes omitted)

[19]      As the Crown noted, deterrence, denunciation of community protection are important sentencing principles in your case.9

[20]      The PAC Report notes that the anger management issues that you have may well be able to be assisted by attending an anger management programme. Further, you are engaging in positive hobbies inside prison and are keen to study a small business course with a view to setting up your own tattooing business on release from prison. Unfortunately, however, you are a high-risk prisoner, as this offending demonstrates. This limits your opportunities within prison. Unless and until you are able to reduce your risk profile within prison to a low to moderate range, your opportunities to undertake any study or rehabilitation programmes within prison will remain limited.

[21]      You have indicated at least some degree of remorse and have written a letter to the victim stating, “I am sorry that I hit you” and that “I was just mad in the heat of the moment, and it was my anger that lead to it…. I am sorry, and I hope you can forgive me”.

[22]      While I commend you for your acknowledgement of wrongdoing, I accept the Crown submission that your letter significantly understates the gravity of your

8      R v Carr [2019] NZHC 2335.

9      Sentencing Act 2002, s 7(1)(e) and (f). See also R v Taueki [2005] 3 NZLR 372 (CA) at [57].

offending and that your remorse is not at the level that could justify a discrete sentencing discount over and above the discount I will give you for your guilty plea.

[23]      Overall, taking these various matters into account, it is my view that the uplift I would normally have given to reflect that your offending occurred while you were serving a sentence for other offending (which would have been about three months) is counteracted by your difficult personal and cultural circumstances and the deprivation you have suffered, which I accept has contributed, in a general sense, to your offending. These factors would otherwise have justified a modest discount. The appropriate uplift and discount effectively cancel each other out. Your starting point therefore remains at three years’ imprisonment.

[24]      You are, however, entitled to a discount for your guilty plea. You pleaded guilty at an early opportunity and a full 25 per cent guilty plea discount is therefore appropriate. This brings your sentence down to two years and three months’ imprisonment.

Totality

[25]      Finally, I must consider the issue of totality. You were sentenced to seven years and six months’ imprisonment on 14 June 2013 for sexual connection with a young person under 16 and for property offending. A further cumulative sentence of four months’ imprisonment was imposed on 13 August 2015 in respect of a charge of common assault and a further one month was imposed cumulatively on 31 May 2019 for wilful damage. You are therefore currently serving a total sentence of seven years and 11 months’ imprisonment.

[26]      The sentence I impose for your present offending will also be cumulative on your existing sentence. If I did not make any adjustment, your total end sentence, for all of your offending, would be 10 years’ and two months’ imprisonment. I am required to ensure, however, that the combination of the sentence I impose today and

the sentence you are already serving will not result in a total period of imprisonment that is wholly out of proportion to the gravity of your overall offending.10

[27]      Adjusting for totality is always a somewhat difficult exercise. I take into account, however, that you are still young, aged only 24. You have been in prison since you were only 17. You do not have a history of serious violent offending. Further, you have real rehabilitative prospects, I encourage you to take whatever steps you can to reduce your security classification, so you can actively pursue those prospects within the prison environment. Taking all of these matters into account I have concluded that the appropriate sentence for your present offending, allowing for totality, would be one year and six months’ imprisonment. This would bring your total sentence, for all of your offending, to nine years’ and five months’ imprisonment.

Sentence

[28]      Mr Mead, please stand. On the charge of wounding with intent to injure I sentence you to one year and six months’ imprisonment, to be served cumulatively on your current term of imprisonment.

[29]You may now stand down.

Katz J

10     Sentencing Act 2002, s 85(2). See also R v Tonga [2019] NZHC 712; R v Rangitoheriri [2018] NZHC 2355; and R v Connelly [2010] NZCA 52.