R v Paea
[2015] NZHC 1705
•23 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-006353 [2015] NZHC 1705
THE QUEEN
v
JUNIOR IOLIMO PAEA
Hearing: 23 July 2015 Appearances:
C P Paterson for Crown
P T R Heaslip for DefendantSentence:
23 July 2015
SENTENCING REMARKS OF WHATA J
Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
P T R Heaslip, Auckland
R v PAEA [2015] NZHC 1705 [23 July 2015]
[1] Mr Paea, you have been found guilty on one count of kidnapping and one count of attempting to pervert the course of justice and you are here today to be sentenced.
[2] The maximum sentence on the kidnapping offending is 14 years’ imprisonment. The maximum sentence on the attempting to pervert the course of justice offending is seven years’ imprisonment.
[3] My sentence will be in five parts:
(a) First, I will set out an overview of the facts of your offending; (b) Second, I will talk about your personal circumstances;
(c) Third, I will summarise the submissions made by the Crown and on your behalf;
(d) Fourth, I will set out my assessment of sentence for you; and
(e) Fifth, I will hand down my sentence. [4] You may sit until I hand down the sentence.
[5] As a preliminary point, you were due to be sentenced with a co-offender, Mr Slaimankhel. However, his sentencing was adjourned in light of the advice of his counsel that the pre-sentencing report did not properly reflect Mr Slaimankhel’s acceptance of the offending. It is necessary today however to examine his role in the offending in order to make sense of your culpability.
Overview of facts
[6] In February 2013, Mr Slaimankhel was on bail with a condition that he did not consume or possess controlled substances unless prescribed by a medical practitioner. On 1 February 2013 he was observed with the victim of the kidnapping,
Mr Yacoub, in the Sylvia Park car park. They were seen retrieving a bag from the boot of Mr Yacoub’s car and placing it in Mr Slaimankhel’s own car. Later that day Mr Slaimankhel was stopped by the police and a search of his vehicle revealed a white plastic bag containing 1,084 mint green tablets. He was arrested for being in breach of bail and remanded in custody until 4 February 2013 and then released pending a defended bail hearing.
[7] On 4 February 2013 a search warrant was executed at Mr Yacoub’s home address and a small quantity of identical green tablets was located in a shoe box containing other anabolic steroids. Mr Yacoub gave an interview to the police stating that Mr Slaimankhel had arranged for the green pills to be delivered to his house, and for him to hand over to Mr Slaimankhel once they arrived.
[8] When Mr Slaimankhel had heard that Mr Yacoub had been interviewed by the police, he became suspicious that Mr Yacoub had misrepresented the position. He decided that it was necessary to have Mr Yacoub provide an affidavit on his behalf for the purpose of his bail hearing. He then arranged with you, Mr Paea, to have you detain Mr Yacoub and bring him to Mr Slaimankhel’s lawyer’s office. In furtherance of this objective, Mr Slaimankhel arranged for a mutual friend, Mr Law, to set up a meeting with Mr Yacoub at the Burger King, Mangere. When Mr Yacoub arrived at the Burger King he was met by you, Mr Paea. You were accompanied by two associates, who like you are large men. CCTV footage revealed that you spoke with Mr Yacoub in one of the restaurant’s booths. At various times one or both of your associates was in reasonably close proximity. While at the Burger King you threatened Mr Yacoub. Although the exact nature of those threats remains unclear, and there was no physical touching, I accept that they involved threats of violence to him and to his family. Mr Yacoub then accompanied you and your associates to Mr Slaimankhel’s lawyer’s offices.
[9] When you arrived at the lawyer’s offices, you were met by Mr Slaimankhel and all three of you entered the lawyer’s office together. All three of you attended an interview with Mr Slaimankhel’s lawyer. During the course of the interview Mr Slaimankhel told Mr Yacoub that he needed to tell the truth on several occasions,
so much so that his lawyer told him to stop speaking to Mr Yacoub. By contrast, Mr Paea, you were quiet throughout the interview process.
[10] The purpose of the interview was to obtain an affidavit from Mr Yacoub to assist with Mr Slaimankhel’s bail hearing the following day. At the conclusion of the interview the affidavit was sworn in front of another lawyer. On my view of the evidence, neither Mr Slaimankhel nor you were present while Mr Yacoub swore the affidavit.
[11] Mr Paea, you then took Mr Yacoub back to the Burger King. Further threats of violence were made by you, though again there was no physical touching.
Victim impact statement
[12] Before I go further it is necessary for me to acknowledge Mr Yacoub’s victim impact statement. Mr Yacoub describes the fear that he experienced after the kidnapping was crippling, disabling and made him feel weak. He says it took him and his family months to feel secure and safe again. He also describes the trial process and the telling effects that had on him. He also described how Mr Slaimankhel was a big brother to him and the hurt caused by the fact that he arranged to have him kidnapped. He says that he wishes that Mr Slaimankhel can understand the hurt and pain that he has caused him and everyone for doing this. No direct mention is made of you Mr Paea.
Personal circumstances
[13] I turn then to your personal circumstances.
[14] I have the benefit of a pre-sentencing report which details some of your background. You were born in Samoa but immigrated to New Zealand in 2001. You were raised by your mother and only recently met your father. You were the principal care-giver of your terminally ill grandfather from 2008 till he died in 2011. Because of your responsibilities you were financially supported by your mother and maternal uncle. A little over two years ago you established your relationship with your now de facto wife, who very recently gave birth to your first child. Regrettably,
as you were incarcerated at the time pending sentencing, you were unable to attend the birth.
[15] You are a part-time personal trainer and your wife works in the same business. In your interview you maintain that you knew Mr Yacoub as a friend and that you would like the opportunity to apologise to him in person. The report writer does not consider that you pose a continued threat to Mr Yacoub.
[16] The report also notes that you have been on bail for a substantial period (about two years), and there is no record of any non-compliance issues. Since your remand in custody you have engaged in several custodial rehabilitative programmes including parenting skills in anticipation of your pending responsibilities. You also have been a cleaner in your unit, a unit representative and you also enrolled for anger management counselling programmes.
[17] The report notes that you have minor offences for, assault and assault with intent to injure in 2006 which resulted in community work and two fire arms convictions in 2010 and 2013. The report writer observes that the previous offending was not particularly serious or requiring rehabilitative measures.
[18] The report is equivocal about your level of remorse, and I will come back to that later.
[19] Overall the report concludes that home detention is considered to be possibly the least restrictive sentence that could be imposed.
Submissions
[20] I now address the submissions made on your sentencing.
The Crown
[21] Ms Paterson submits that kidnapping is plainly the lead offence, but it is appropriate to identify a global starting point taking into account both the kidnapping and the attempting to pervert the course of justice offending.
[22] She submits that a starting point in the order of three and a half years’ imprisonment is appropriate having regard to various aggravating factors including premeditation, threatened violence, length of detention and the extent of the harm. Reference is also made to a number of authorities with starting points in the range of three to four years.1 The Crown also emphasised that the perverting the course of justice offending is a particularly aggravating feature that would ordinarily attract by itself a three year starting point.2
[23] The Crown identifies the previous convictions as an aggravating feature but accepts that by itself would not justify any uplift.
[24] The Crown also opposes home detention given the seriousness of the offending and the nature of the charges.
[25] Mr Heaslip submits on your behalf that a starting point in the region of 18 months to 21 months is appropriate for your offending. He noted that you accept responsibility for your offending referring to a letter to Mr Yacoub recording:
…since being found guilty, I realise I did wrong and I ask if possible that you forgive me, … I cannot explain or write how much I am sorry I ever got involved and am deeply, deeply truly sorry that I made you a victim of my behaviour.
[26] Mr Heaslip also challenges the Crown’s summary of the facts. In particular, Mr Heaslip says that the evidence that your associates were gang members and that they intimidated Mr Yacoub is equivocal. He also submits that the Crown makes no attempt to differentiate between you and Mr Slaimankhel’s offending. As to the gravity of the offending, he notes there was no violence, but he accepts that there were threats of violence. He says that you accept that Mr Yacoub was traumatised by your actions but that the whole event was a poorly planned and pointless activity. He reiterates that you make full acknowledgement of your responsibilities and that Mr Slaimankhel drove the whole exercise and that your responsibility falls somewhere between that of Mr Law (who was acquitted by the jury) and of
Mr Slaimankhel.
1 R v Piper [2012] NZCA 104; R v Rangitaawa HC Christchurch CRI 2004-009-14066, 11 August
2005; R v Hunter & Wu HC Auckland CRI-2008-092-011429, 25 June 2010.
2 Citing R v Mangus and Turney HC Auckland CRI-2006-004-7577, 1 November 2007.
[27] Mr Heaslip also referred to your personal circumstances as set out in the pre- sentencing report and in letters from your mother, de facto wife, pastor and the mid- wife. He refers to the report’s reference to your impeccable behaviour on remand. He notes that it was extremely painful for you to be separated from your wife during the birth of your first child.
Assessment
Purposes and principles of sentencing
[28] For the first part of my assessment, I am now going to describe the principles that guide sentencing.
[29] I have to take into account the purposes and principles of sentencing outlined in the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have done. The sentence is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might let similarly offend and I have to consider the protection of the public.
[30] The sentence I impose upon you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must take into account any circumstances that might otherwise make it an appropriate sentence disproportionately severe and any effects that the offending has had upon you. I must also consider your rehabilitation and impose the least restrictive sentence possible.
Guidance
[31] Against these general principles, I turn to other sentences for kidnapping for guidance as to the appropriate starting point. My sense of the authorities is that kidnapping with high levels of intimidation involving multiple offenders and or physical violence and or other serious offending will often attract starting points in the range of two and half to three and half years.
[32] For example, I refer to the starting points in R v Banfield,3 R v Hunter,4 R v
Piper5 and Tozer v R.6
[33] In Banfield a two and half year starting point was adopted for an aggravated robbery and kidnapping.
[34] In Piper four defendants went to the victim’s home, kidnapped her for three to four hours and demanded cash from her which they obtained. A starting point of three years was adopted in that case.
[35] In Hunter a starting point of three and half years was adopted for a defendant who, with another offender, threatened the victim with violence and had previously blackmailed the same victim.
[36] In Tozer, the offender attacked the victim with a weapon and threatened him that he had hired two gunmen to shoot him if he made a run for it. A starting point of three and half years was adopted and endorsed by the Court of Appeal.
[37] For completeness there are examples of sentences with starting points as low as two years for combined kidnapping and blackmail offending7 and as high as four and half years for kidnapping involving high levels of intimidation and up to 15 people, some with gang regalia, and demands for cash and vehicles.8
[38] I also acknowledge that end sentences of 18 months and home detention have been imposed for kidnapping involving acts of physical violence.9 In R v Chahil, secondary offenders acting on instruction were given sentences of home detention.10
[39] All of this illustrates the fact specific nature of the assessment that I must make.
3 R v Banfeild CA CA22/05, 27 July 2005.
4 R v Hunter & Wu above n 1.
5 R v Piper, above n 1.
6 Tozer v R, above n 4.
7 R v Hunter & Wu, above n 1.
8 R v Rangitaawa above n 1.
9 Chahil v R [2010] NZCA 244.
10 Ibid.
[40] In terms of perverting the course of justice offending, I agree with Ms Paterson that generally this type of criminal conduct will attract a sentence of imprisonment. But each case must be assessed on its own merits, including the seriousness of the particular offending and the culpability of the offender. For example, in R v Mangus and Turvey, helpfully cited by Ms Paterson, Courtney J observed that serious offending attracted a sentence of about three years and a sentence in the range of 18 months to two years in less serious cases can be expected. The Judge also observed that it is not essential to impose a custodial sentence and that there have been cases in which leave to apply for home detention
has been granted.11 In the result, Courtney J felt constrained to impose a sentence of
imprisonment rather than home detention. But, with respect, that is hardly surprising given the facts of the case, namely the obtaining of false evidence in support of an appeal against a rape conviction.
[41] Within this general frame, I turn to my assessment the facts of your offending.
Aggravating factors
[42] I agree with the Crown; it is appropriate to treat the kidnapping as the lead offence but to approach the sentencing on a holistic basis and with regard to the totality of the offending in terms of fixing the starting point.
[43] I consider that there are three particularly aggravating factors to the offending overall, though your culpability Mr Paea must be assessed by reference to your specific involvement.
[44] First, there was a high level of planning by Mr Slaimankhel – while lacking in sophistication, Mr Slaimankhel retained you, Mr Paea, to detain Mr Yacoub and arranged for Mr Law to dupe Mr Yacoub into attending the Burger King so he could
be confronted there by you.
11 R v Mangus and Turvey HC Auckland CRI-2006-004-7577, 1 November 2007 at [24].
[45] Second, and connected to the level of premeditation, the purpose of the kidnapping was to pervert the course of justice – a serious offence in its own right.
[46] Third, the kidnapping caused significant emotional harm to Mr Yacoub.
[47] I disagree however with the Crown that the threats of violence were seriously aggravating in this case. Most if not all kidnapping will involve some form of violence – it inheres to the nature of the offending – hence the maximum sentence. Having said that the threats of violence are plainly relevant to my assessment as to where the offending sits in the spectrum of offending of this kind.
[48] Nor do I consider that the length or nature of the detention to be particularly aggravating, perhaps two to three hours. There was no physical violence at anytime. In this regard I do not accept the evidence that Mr Yacoub was “fisted” on the way out of the Burger King. The CCTV footage does not reveal that you touched Mr Yacoub at any time or that your associates were gang members. Furthermore, except for the trip to the lawyer’s office, the kidnapping occurred in a public place where the prospect of physical violence was always going to be low.
[49] In terms of the offending overall I assess your culpability as materially lower than Mr Slaimankhel, though still serious. You were a secondary person in the offending. You were acting under Mr Slaimankhel’s direction. Balanced against this you took part for monetary gain and managed Mr Yacoub’s kidnapping at the Burger King and his transport to the lawyer’s office.
[50] In terms of perverting the course of justice, my view of the evidence is that you did not fully appreciate the seriousness of what was happening until it was too late. Most revealing in this regard is a text from you while at the lawyer’s office indicating to an associate that this was more serious than you had realised. I therefore consider your culpability on this charge to be low.
[51] In light of the authorities just mentioned I consider that a starting point of two years six months is commensurate with your role in the offending.
[52] I make no further uplift for the perverting the course of justice offending having included it for the purpose of the starting point.
Mitigating factors
[53] In terms of personal mitigating factors, I agree with your counsel that you are entitled to a substantial discount for the following reasons:
(a) You have taken steps already in the short time following the hearing to demonstrate a commitment to rehabilitation;
(b) You accept your culpability for the offending; (c) You accept the harm that you have done;
(d) You have good family support; and
(e) The care-giving role you undertook for your ill grandfather over a number of years (which is not challenged by the Crown) suggests to me that you are a person with strong familial values.
[54] All of this demonstrates a high level of remorse and that you are a worthy candidate for rehabilitation. While your record is not unblemished, that is not a materially aggravating factor.
[55] A discount of 20 per cent or six months is warranted.
[56] Accordingly, adopting the same totality approach were I to sentence you to imprisonment, I would impose a sentence of 24 months.
Home detention
[57] Given this end sentence you are eligible for home detention.
[58] It is necessary to observe again that home detention in cases of serious kidnapping or for perverting the course of justice is not without precedent.12 But the key issue is whether such a sentence should be handed down given the combination of this type of offending.
[59] I am conscious that there is a strong need to denounce your conduct and to deter others from it given the combination of offending. At first blush, kidnapping to pervert the course of justice is not an obvious candidate for home detention. Nevertheless, I have come to the view that a sentence of home detention is commensurate with the degree of your culpability and the specific facts of your offending. As I have said, you played a largely secondary role in the offending overall and in my view your culpability in respect of the perverting of the course of justice offending was low. Indeed, I was left with the strong impression by the end of the hearing that you never really quite appreciated the seriousness of what you were doing until it was too late.
[60] I also consider that your personal circumstances noted above are strong factors in favour of a sentence of home detention. As I have said, you are a good candidate for rehabilitation, with a supportive matriarch and a young family of your own. It is also clear to me that you now appreciate the gravity of your conduct and the impact that you have had on Mr Yacoub.
[61] I have considered your previous convictions. They are not such that lead me to doubt the correctness of home detention in this case.
[62] Overall therefore I agree with the pre-sentencing report that a sentence of home detention is the least restrictive outcome appropriate to the circumstances.
[63] As to the length of the sentence, the offending was still serious and the maximum period of home detention is warranted.
[64] According I consider a sentence of 12 months home detention is required.
12 Chahil v R, above n 9.
End Sentence
[65] Mr Paea please stand.
[66] Mr Paea, on each count of kidnapping and perverting the course of justice, I impose a sentence of 12 months’ home detention to be served concurrently. The address for the home detention will be that specified and be subject to the conditions recommended by the pre-sentencing report which will be included in the written version of these sentencing notes.
First strike warning
[67] As you would have heard Mr Paea, I am required firstly to convict you, which I do and to give you a first strike warning. Mr Paea, given your conviction for kidnapping you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violence offences.
(a) If you are convicted on any serious violence offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[68] Mr Paea you may stand down.
Addendum
[69] This is an addendum to the sentencing notes. given the lateness of the day the home detention sentence will commence tomorrow. Mr Paea you will need to be at home all day tomorrow for the purposes of giving effect to that sentence.
Conditions
[70] The conditions of the home detention are as follows:
(a) The home detention will be served at 30 Glenfinn Place, Massey, Auckland.
(b)Mr Paea is not to leave the above address without the consent of a probation officer.
(c) Mr Paea is to attend an assessment for any rehabilitative counselling or other programme, generic or specific, as directed by a probation officer. Mr Paea is to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.
(d)Mr Paea is not to possess, consume or use any alcohol or drugs not prescribed to him.
(e) Mr Paea is not to undertake any type of employment, voluntary work or training work without prior written approval of a probation officer.
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