R v Neketai
[2015] NZHC 396
•9 March 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-070-1557 [2015] NZHC 396
THE QUEEN
v
WITERI AHOMIRO NEKETAI
Charge:
Plea:
Manslaughter (substituted conviction)
Not Guilty
Counsel:
GC Hollister-Jones and NG Belton for Crown
CJ Tennet for PrisonerSentenced:
9 March 2015
SENTENCING NOTES OF BREWER J
Solicitors/Counsel: Ronayne Hollister-Jones Lellman (Tauranga) for Crown
CJ Tennet (Wellington) for Prisoner
R v NEKETAI [2015] NZHC 396 [9 March 2015]
Introduction
[1] Mr Neketai, on 18 October 2013, in accordance with the verdict of the jury, I sentenced you on your conviction for the murder of Gary Kimura.1 The Court of Appeal has overturned that conviction and substituted a conviction for Mr Kimura’s manslaughter.2 Accordingly, I must now sentence you for that manslaughter.
Facts
[2] The facts, of course, have not changed and I will set them out briefly.
[3] In late September 2011, Mr Rewiri, a prisoner serving a life sentence for murder, used a cellphone to make arrangements with you to collect an alleged drug debt of $35,000 from Mr Kimura. He was then a 44 year old man who was living in Tauranga with his family. In the text messages, Mr Rewiri encouraged you to seriously assault Mr Kimura during the course of the debt collection. You agreed. Your motive was to get money, namely a share of the debt.
[4] On 5 October 2011, you borrowed a car and, with two associates, drove to Mr Kimura’s home. You had a plan to lure Mr Kimura outside and so you sent one of your young associates to knock on the door. He was not known to Mr Kimura. Mr Kimura’s daughter answered the door and your associate asked for Mr Kimura. The daughter fetched Mr Kimura who came to the door and went outside. You then confronted Mr Kimura on the driveway in front of the garage and demanded money. Mr Kimura refused to pay and, without warning, you punched Mr Kimura in the head very hard. The force of the blow caused the 109 kg Mr Kimura to fly through the air and land on the concrete, hitting his head.
[5] I find as a fact that you then kicked Mr Kimura at least once in the head while he lay on the ground already bleeding profusely. I accept it was the punch which was the fatal blow but the kick is evidence of your intent when you punched
Mr Kimura.
1 R v Neketai and Rewiri [2013] NZHC 2711.
[6] On the evidence I heard, I find that when you punched and kicked Mr Kimura you intended to cause him very serious bodily injury. I take into account that you are an experienced kick boxer. Following the judgment of the Court of Appeal, I make it plain that you are not to be sentenced on any basis that you had an intention or an appreciation that your attack on Mr Kimura might cause his death. However, the fact is that Mr Kimura did die.
[7] Following your attack on Mr Kimura, you and your associates left his address. You later exchanged text messages with Mr Rewiri about the attack. You expressed amusement at what had occurred, as well as an appreciation of the physical injury you had caused him. In one text message to Mr Rewiri you said that Mr Kimura was “fckd cuzy n hospital myt be a vege dnt no yet … hahaha tha fat fucker”. You felt no regret for your actions following the assault. Having read the pre-sentence report and the reports of the two health assessors, I conclude that you have not accepted responsibility for causing the death of Mr Kimura, either. You blame Tauranga Hospital for that.
[8] Mr Neketai, there are two decisions I have to make today. The first is the appropriate sentence for the manslaughter. The second is whether, instead of that sentence, you should be sentenced to preventive detention.
Finite sentence
[9] The maximum penalty for manslaughter is life imprisonment. However, because manslaughter covers such a very wide range of situations which have led to a person’s death, there is no formula which can be followed to reach a correct sentence. What I am going to do is follow an assessment procedure which the Court of Appeal has said is an appropriate way to approach sentencing for manslaughter.3
So, I am going to first look at a case called R v Taueki which addresses crimes which
result in really serious bodily harm.4
[10] Taueki establishes three broad sentencing bands for such offending. Once I
find where your offending would fit within those bands, I then decide how the result
3 R v Tai [2010] NZCA 598.
should be increased to take into account that the harm you inflicted intentionally
actually resulted in Mr Kimura’s death.
[11] I find that the aggravating features of your offending are:
(a) The offending was premeditated. You were contracted by Mr Rewiri to use violence against Mr Kimura. You made a plan, you enlisted the help of two other men and you went to Mr Kimura’s home with the intention of using significant violence against him.
(b)Your offending did involve extreme violence. You attacked Mr Kimura without warning and with the expertise of an experienced kick boxer. The king hit punch was the fatal blow, but you kicked him in the head afterwards and I need to take that into account.
(c) The offending involved an attack to Mr Kimura’s head. That is an aggravating feature because attacks to the head carry so much risk of serious injury or, as in this case, death.
(d)Your offending actually resulted in such serious injury that death resulted.
(e) The offending took place on Mr Kimura’s property. This was not an actual home invasion but, in accordance with your plan, Mr Kimura was lured from inside his house to the driveway in front of his garage. That is where he was attacked.
(f) Your offending was for a criminal purpose. You were there to enforce an alleged drug debt. Your motivation was that you would get a proportion of whatever money you were able to extort from Mr Kimura as a result of your violence.
[12] Mr Neketai, I find that these aggravating features place you within band 3 of
Taueki which has a sentencing range of nine to 14 years’ imprisonment.
[13] I have cross-checked this conclusion with a number of manslaughter cases.5
None of them are strictly comparable to your case, but that is to be expected given that each case is unique. Nevertheless, they do not cause me to change the assessment.
[14] Your counsel has urged me to adopt the same starting point as I did for Mr Rewiri who pleaded guilty to manslaughter. That starting point is eight years’ imprisonment. I do not accept that submission. Mr Rewiri instigated the violence, but he was not present. It was your plan and you implemented it.
[15] If Mr Kimura had not died then, in terms of Taueki, I would adopt a starting point of 10 years’ imprisonment. That is because you did not use a weapon and your attack was not prolonged.
[16] But Mr Kimura did die and, because that was your fault but not your intent, and you did not consciously appreciate the risk of death, I will adopt an overall starting point of 12 years’ imprisonment. This is a higher starting point than the other manslaughter cases I have looked at, but what makes your case different is your premeditated plan to inflict serious violence on Mr Kimura at his home property in order to collect money in a criminal context and for your personal profit. In addition, your violence was the primary cause of Mr Kimura’s death, not a contributing factor.
Personal circumstances
[17] Mr Neketai, I must now consider your personal circumstances to see whether
I should adjust the starting point of 12 years’ imprisonment, either up or down.
[18] Prior to committing this offence, you have a lengthy criminal history which includes four convictions for assault, a conviction for male against female assault, a conviction for threatening to kill and a conviction for aggravated robbery. The aggravated robbery conviction was in 2005 and you were sentenced to four years’
imprisonment. You served the entire sentence.
5 Kepu v R [2011] NZCA 104; R v Jamieson [2009] NZCA 555; R v Tai [2010] NZCA 598;
R v Tafutu [2014] NZHC 657.
[19] I uplift the starting point by one year to take account of your previous record of violent offending.
[20] On 30 January 2013, five months before your trial, you wrote to the Crown offering to plead guilty to manslaughter. You are entitled to a small discount to take account of that offer since that is ultimately the offence for which you have been convicted. The Crown suggests a credit in the region of 15 percent and your lawyer argues for a 20 percent discount. However, I disagree with both counsel. The maximum discount available for an early plea of guilty is 25 percent. But your offer to plead guilty came at a late stage and against an overwhelming Crown case for manslaughter. The only issue in your case was whether the evidence would substantiate a conviction for murder. I allow a discount of 10 percent.
[21] There is no other factor personal to you which would reduce the sentence
further and so the final sentence is 11 years and eight months’ imprisonment.
[22] However, that is not the end of it. I also have to take into account that subsequent to the manslaughter of Mr Kimura, and while you were in custody on remand, you committed two further offences of serious violence for which you received cumulative prison sentences. The first of these offences took place on
20 July 2012. You pleaded guilty to injuring with intent to injure and you were
sentenced to two years and four months’ imprisonment.
[23] On 15 May 2013, you attacked another prisoner and pleaded guilty to a charge of causing grievous bodily harm with intent to injure. You received three years and eight months’ imprisonment for that offence.6 In other words, you are already serving cumulative sentences totalling six years’ imprisonment.
[24] There is a principle of sentencing called totality. That is to say, a Judge sentencing a person who is already serving terms of imprisonment has to look at the
prisoner’s overall sentence position to make sure that the further sentence does not
6 Because Mr Neketai originally pleaded not guilty to the 20 July 2012 attack, his sentencing on the resulting charge of injuring with intent to injure took place after his sentencing on the later charge of causing grievous bodily harm with intent to injure.
result in an unjust total. In other words, the overall situation of imprisonment must not be disproportionate to the overall criminality.
[25] If I were to add 11 years eight months to the six years you are already serving, that would be an effective sentence of 17 years eight months’ imprisonment, since if I were to impose a finite sentence on you now it would have to be cumulative upon the sentences you are already serving. That is because the manslaughter of Mr Kimura is distinct and separate from the later incidents of offending.
[26] The Crown submits that if I stand back and look at your position overall, a total sentence of 15 years’ imprisonment would be proportionate. I have independently reached the same view. Because of that, if I were to impose a finite sentence of imprisonment for the manslaughter of Mr Kimura it would be of nine years’ duration.
Minimum period of imprisonment
[27] Finally, in this section of your sentencing, I need to consider whether a minimum period of imprisonment should be imposed.
[28] Normally, for serious offending, the Parole Board can consider whether to release a prisoner on parole after he has served one-third of his sentence. However, a Court can order a longer minimum period of imprisonment for any of the following purposes:
(a) To hold you accountable for the harm done to Mr Kimura and the community by your offending;
(b) To denounce your conduct;
(c) To deter you or other persons from committing the same or similar offence;
(d) To protect the community from you.
[29] In my view, all of those purposes apply to your situation. I will not repeat the features of your offending and your personal situation which cause me to reach this conclusion. I agree with the Crown’s submission that the purposes of sentencing can be met only by the imposition of a minimum period of imprisonment of two-thirds of your end sentence.7 That is to say, six years’ imprisonment.
[30] What all that means, Mr Neketai, is that if I were to sentence you to a finite length of imprisonment at this stage, it would be nine years with a minimum period of imprisonment of six years. But I have to put that to one side now and go on to consider the issue of preventive detention.
Preventive Detention
[31] Manslaughter is a qualifying offence for a sentence of preventive detention.
[32] A sentence of preventive detention is not a punishment. Its purpose is to protect the community from those who pose a significant ongoing risk to the safety of its members. If I conclude that you are likely to commit another qualifying offence when you are released at your sentence expiry date then I may sentence you to preventive detention.
[33] There is a number of factors I have to take into account. The first is whether there is any pattern of serious offending disclosed by your history. Of course, Mr Neketai, you have a history of serious offending which demonstrates a pattern of violent behaviour against your victims. Before the manslaughter of Mr Kimura, you were convicted four times for common assaults which took place in 1997, 2009,
2010 and 2011. You were also convicted in 2000 for threatening to kill, and for male assaults female in 2001. As I have said, your conviction for aggravated robbery took place in 2005.
[34] What is more concerning is following the manslaughter of Mr Kimura, while you were in Auckland Remand Prison, you attacked two other prisoners. Your
lawyer has submitted that I should not pay any attention to those later assaults. As a
7 Sentencing Act 2002, s 86(2).
matter of law and practicality, I disagree. I have to look at you as you are here today against the whole of your history. The circumstances of those assaults in prison are part of the information, the overall picture, that I have of you and the risk that you pose.
[35] What is particularly concerning about the assaults on the other two prisoners is that your attacks were quite similar to the attack on Mr Kimura. In both instances you attacked the head of the victim. One of your victims was saved only by emergency surgery to his head. You knew the life threatening risks of delivering a king hit to the head because you had just killed someone in that way.
[36] The second factor is the seriousness of the harm to the community caused by your offending. The manslaughter of Mr Kimura involved a serious act of violence that resulted in his death. This caused very serious harm to the community and, in particular, to Mr Kimura’s family. I read the victim impact statements at the time that I sentenced you on the then conviction for murder. I have read the updated victim impact report. It is quite clear that the harm done to the family by Mr Kimura’s death continues to exert very powerful effects.
[37] The third factor is information indicating a tendency on your part to commit serious offences in the future. As the Crown correctly points out in its submissions, the Court is in a unique position as a result of this re-sentencing exercise when it comes to assessing your tendency to commit serious offences in the future. I have seen this tendency play out. Since the manslaughter of Mr Kimura, you attacked the heads of two further people causing serious injuries. You committed such attacks despite knowing the serious damage a king hit to the head can cause.
[38] I have also had the benefit of being able to read two health assessors’ reports which assess your risk of committing serious offences in the future. Dr Brunskill interviewed you on 3 September 2014. In his report, he concludes that it is difficult for him to definitively comment on the likelihood of you reoffending upon future release. He did attempt to identify current risk factors. Dr Brunskill noted that you were brought up in an environment where violence was modelled as being acceptable in the home. He said you have maladaptive personality traits which
include a conviction that one should stand up for oneself in life, including using violence as deemed necessary. He identified that you minimise your responsibility for causing harm to others and that you rationalise the detail of your previous violence rather than showing appropriate and full remorse.
[39] Dr Brunskill noted that there is the presence of historical factors that are associated with future risk of violence, such as previous violence. Other factors associated included young age, relationship instability, early maladjustment and personality dysfunction. There is also evidence of negative attitudes and impulsivity.
[40] Dr Brunskill reported that you told him that you were at a crossroads in your life in terms of what you could do to prevent future violence occurring. However, Dr Brunskill also said this:
There was some evidence of arousal and animation when discussing violence and if indeed Mr Neketai is at a crossroads and making efforts to control his behaviour then this is a recently adopted position and can only be meaningfully consolidated via his intensive psychological treatment and specialised correction programmes with staff trained to assist violent offenders.
[41] Dr Stenhouse interviewed you on two separate occasions over a four hour period on 11 and 18 November 2014. He identified, in his report, that in addition to the two remand incidents for which you were convicted:
Mr Neketai has eight other incident reports on file relating to his current period of imprisonment. These include three other misconduct charges for striking other offenders, two of which directly report Mr Neketai striking other offenders about the head with a closed fist – 11 February 2013,
21 August 2012 and 28 January 2012. His three most recent incident reports have all occurred during the assessment period. These included one for assaulting a staff member by swing-away during a rubdown search (28 November 2014), one for kicking his door and inciting others to do the same (15 November 2014), and one for possessing unauthorised items in his cell (4 November 2014). The latter related to custodial staff uncovering a tattoo needle and a glass tube used as a smoking device in his cell. Mr Neketai stated that he had recently moved into the cell and was not aware of the object hidden in the mattress where it was found by staff.
[42] You claim to have a positive new attitude that has reduced your violent tendencies. Commenting on this apparent shift in attitude, in tandem with the eight incident reports, Dr Stenhouse said:
While his last incident of noted violence was over 12 months ago, something that may support a new attitude, it appears highly unlikely such entrenched dispositions disappear spontaneously. Indeed, his recent assault on staff, albeit more minor, indicates an ongoing presence of these dispositions.
[43] Dr Stenhouse used a number of psychological tests to assess your likelihood of reoffending. Dr Stenhouse concluded that you have offence-related personality traits and patterns of behaviour that are likely pervasive, entrenched and would be difficult to shift even with high motivation and intensive treatment. Dr Stenhouse considered that you are at high risk of future offending and that such offending would likely include violence. He said:
Future offending, if it did occur, could occur in either a custodial or community environment and would likely involve either general rule breaking or violent behaviour. Any future violence would likely be directed toward someone Mr Neketai has taken issue with due to what he has perceived as provocative behaviour, a perception likely influenced by one of his associates. While an attack on staff could not be ruled out, a future assault appears more likely to involve another offender or associate. In this instance it is likely that Mr Neketai would be primed to escalate a dispute and would look to spontaneously strike the offender to the head using a fist, immediately overwhelming the victim and extinguishing the threat. Due to his stature and training, he has an ability to incapacitate a victim with one strike causing the victim to be vulnerable to further critical injury by falling to the ground. The other possible scenario for future violence in the community would include the context of a future intimate relationship and conflict with his partner.
[44] One of the issues about your offending in prison is that it took place in prison where detection of the offending was inevitable. This is a strong indicator of a heightened risk of reoffending.
[45] The next factor is the absence of or failure of efforts by you to address the cause or causes of the offending. The health assessors’ reports identify that you have not completed any departmental offence specific interventions. Dr Stenhouse said that you told him that you had completed extensive treatment while in prison. You told him that you had completed the special treatment unit rehabilitation programme, the moderate intensity rehabilitation programme, and the Maori therapeutic programme. Dr Stenhouse checked and, in his view, that is not correct. There is no record of you completing any of these programmes and you have not completed any departmental offence specific interventions. Dr Stenhouse said you told him you completed a living without violence programme in 2000 while in the community. He
said that if this is true then the intensity would have been low and your behaviour since this time suggests that any learning did not curb your violent disposition. Dr Stenhouse did identify that you told him you were willing to now attend an intensive programme.
[46] This is important for this reason. When a Court looks at a person for preventive detention, the focus is on future risk. If a prisoner has undergone intensive work to identify and remedy a tendency for violence and those intervention programmes have failed, that is a clear indicator for preventive detention. But if a prisoner never has, then often the Court will say the prisoner needs to be given this opportunity first and so a lengthy finite sentence can be seen as being more suitable.
[47] The Crown here acknowledges that and points, however, to how deeply entrenched your problems are; and the Crown points to what Dr Stenhouse, in particular, said that you have personality traits and patterns of behaviour that are likely pervasive, entrenched and would be difficult to shift even with high motivation and intense treatment. So the Crown submits that the prospects for you of successful intervention are remote and, indeed, a sentence of preventive detention would be the best incentive for you to engage successfully in treatment.
[48] The Crown relies on a case called R v Bryant in support of this.8 In that case, the Court of Appeal held that it was appropriate for a Judge to impose a sentence of preventive detention when the psychiatric reports indicated that there was little likelihood that the prisoner would be receptive to treatment and that this would create an unacceptable risk of further offending in the future.
[49] I do not think that your outlook is as bleak as that. Both health assessors’ reports identify that intensive treatment is needed. Dr Stenhouse believes that offence specific treatment should at least assist in your safe management during imprisonment. Similarly, Dr Brunskill appears to believe that intensive training would be the only way to meaningfully consolidate your intention to depart from
your violent disposition. However, both doctors indicate the fact that such treatment
8 R v Bryant CA236/03, 16 December 2003.
might not be successful. In particular, Dr Brunskill identifies that the nature of the prison environment will provide a challenge to your intention to remain non-violent.
[50] Overall, I conclude that the high risk you pose to the community means that the lack of intensive efforts to date to address your problems should not by itself mean that preventive detention is not a suitable sentence in your case.
[51] The next principle is that a lengthy determinate sentence is preferable if this provides adequate protection for society. If I sentence you to a finite sentence for manslaughter, you might be subjected to an extended supervision order if the Chief Executive of the Department of Corrections applies for one before your release. This would allow the Parole Board to impose special conditions on you when you are released from prison.
[52] In considering whether to sentence you to preventive detention, I should take into account whether an extended supervision order might be granted following a finite sentence. If a finite sentence combined with an extended supervision order would adequately protect the public from your violent offending then I should give you a finite sentence instead of preventive detention. However, because a sentence of preventive detention provides the ongoing protection of life parole and the ability to recall, a finite sentence to be followed by the available backstop of an extended supervision order should not be viewed as an agreeable alternative to preventive detention. The benefit of preventive detention in your situation is that you control your own destiny. If you successfully participate in a course of treatment such that you no longer pose a risk to the safety of the community then that will determine your final release date. This provides an incentive for you to change your behaviour.
[53] Your health assessors’ reports indicate that you have expressed a willingness to undertake offence specific treatment. However, both reports acknowledge that for this treatment to be successful it will need to be done in an intensive fashion.
[54] The reports acknowledge that even if you are motivated to change your behaviour, treatment might not actually be successful due to your violent personality traits being so entrenched. Dr Brunskill believes that it will be difficult for you to
maintain a non-violent position in prison and beyond. You are likely to be significantly challenged in the prison setting in terms of the day-to-day need to keep your temper under control and tolerate frustration. Accordingly, there is a significant risk that your treatment will be unsuccessful. If I impose a finite sentence, there is a high possibility that you will be released from prison without having changed your behaviour at all. This poses an unacceptable risk to the general public. I believe that preventive detention would offer better protection to the public. It ensures that you will not be released until you can control your violent tendencies, which also gives you an incentive to change your behaviour.
[55] That is a lot of words, Mr Neketai, and I have spoken a lot of words because you are not the only audience for the sentence that I am going to impose. There is a wider audience – Mr Kimura’s family; other Courts; other lawyers. I have concluded that preventive detention is the appropriate sentence for you and for your benefit directly I will summarise why.
[56] First, you are 37 years old. You are not a young man with the impetuous risk- taking tendencies of the young. I accept the views of the health professionals that your problems are deep-seated and will be difficult to change. Your full co-operation will be required, sustained for a long period. As yet, you are just beginning to say you need help, but at the same time you justify what you have done and blame others. I see a possibility of change but, against that, I have to consider the safety of the public.
[57] Second, the level of risk you pose is high. Mr Neketai, you are a dangerous man. You are fit, strong and trained as a kick boxer. You killed Mr Kimura by a king hit to his head. But while waiting on remand for your trial you attacked two other men in a similar way. You nearly killed one. I accept that it is over a year since your last serious violent offending, but that is not a long period given that you are in prison and subject to a strict regime of supervision.
[58] Third, and this is important, a sentence of preventive detention is not a sentence of last resort. Of course, a finite sentence is to be preferred for a range of reasons if the safety of the public will not be at undue risk. But the main point for
you is that preventive detention puts your release in your hands. If you recognise you have a problem, work hard with the programmes available to you and succeed, you will be released. Success equals release. You will be back in the community. If it turns out that you are released into the community and you go back to your violent ways, you can be recalled to prison. If not, you will take your place in society again like everybody else. You are a mature man and your future will be in your hands.
[59] I am also required to impose a minimum period of imprisonment when I sentence you to preventive detention. I determined the minimum period of imprisonment under a finite sentence in your situation to be six years’ imprisonment. I believe that six years’ imprisonment is the appropriate minimum period required for the purposes of safety of the community in the light of your age and the risk posed by you at the present time.
Sentence
[60] Mr Neketai, would you please now stand.
[61] Following your conviction for manslaughter, I sentence you to preventive detention with a minimum period of imprisonment of six years. You may stand
down.
Brewer J
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