R v Paleaaesina

[2017] NZHC 1038

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-005315 [2017] NZHC 1038

THE QUEEN

v

BECOYLEE ROGERS PALEAAESINA

Hearing:	19 May 2017
Appearances:	H Benson-Pope for Crown P K Hamlin for Defendant
Judgment:	19 May 2017

SENTENCING NOTES OF GILBERT J

Solicitors/Counsel:

Kayes Fletcher Walker, Auckland

P K Hamlin, Barrister, Auckland

R v PALEAAESINA [2017] NZHC 1038 [19 May 2017]

Introduction

[1]      Mr Paleaaesina, you appear for sentence having pleaded guilty to one charge of kidnapping a 50-year-old female on 29 February 2016.  The maximum penalty for this offence is 14 years’ imprisonment.

The facts

[2]      You were a member of the Ghost Unit, a group linked to the Head Hunters gang. You and other members of the Ghost Unit agreed to become involved as “hired muscle” in a plan to kidnap the victim who was not known to you. You met with other members of the group on the afternoon of 14 February 2016 when the initial plan to kidnap the victim was formulated.

[3]      In the early hours of the following morning, you and the other members of this group travelled in three vehicles to the victim’s address.   You remained with the vehicles while other members of the group went to her house but they were unable to locate her. This kidnapping attempt was abandoned when police attended after having been alerted by a member of the public that the group was acting in a suspicious manner. You and the others returned home at that stage.

[4]      After this failed attempt, you were admitted to hospital on 17 February 2016 for treatment to your big toes. You were kept in hospital for five days and discharged on 22 February 2016.

[5]      While you were in hospital, a new kidnapping plan was formulated. This was to draw the victim out of her house on the pretence of arranging a drug deal while members of the Ghost Unit waited in three vehicles ready to take and detain her. A second group, including you, was to be parked a few streets away.  Another group was to wait in a further vehicle at a nearby restaurant.

[6]      You were not involved in planning this further kidnapping attempt and you were no longer able to assist as hired muscle because you were still recovering from your hospital treatment and were wearing special medical footwear.  However, you

were stationed in the vehicle that was parked a few streets away from the victim’s address and acted as a “lookout”.

[7]      The victim was duly persuaded to leave her address and she was kidnapped by other members of the group.  Your physical involvement ended at that stage and you took no further part in the events that led to the victim being detained, assaulted and fatally injured the following day when she managed to escape from the boot of a moving car.  However, you remained in cell phone contact with other members of the group and the following morning you received a text message saying that they were still with the victim. You responded with a text saying “fukn punch her in the muff”.

[8]      You received no financial gain for your involvement and did not expect to do so.

Personal factors

[9]      You are a 26-year-old male with no previous convictions.  You have strong family support and are assessed as having a low risk of re-offending and a low risk of causing harm to others.  Your mother was interviewed by the probation officer at length during a home visit.  She says that you and your two brothers were raised in a protective environment and had a strict upbringing.  She confirms your account that you do not drink alcohol, use illegal drugs or gamble.  She states that she and your father worked hard to prevent their children from getting into trouble and your present offending has broken her heart. Nevertheless, she is willing to support you in any way possible. The probation officer recommends a sentence of home detention given your low risk of re-offending and high motivation to change.

[10]     I have read the testimonials attesting to your good character, good nature and strong work ethic.  It appears that your present offending is out of character and that you became involved because you were friends of some of the co-offenders who you had met at school or worked with at a security company.  You now accept that you should never have become involved and regret doing so.  The probation officer notes that you expressed remorse and are highly motivated to live an offence-free life from now on.

[11]     You have accepted full responsibility for your actions and recognise that you must now bear the consequences.

Starting point

[12]     The first step in the sentencing process is to select a starting point that reflects the overall culpability of your offending, leaving aside any relevant personal factors. Lang J gave you a sentence indication on 31 March 2017 in which he explained why he considered that a starting point of three years’ imprisonment would be appropriate for your role in the kidnapping.1    I respectfully agree with his assessment and the reasons he gave for it.

[13]     In agreement with Lang J, I consider that your culpability is broadly the same as another member of your group, Cecilia Hansen.  I adopted a starting point of three years’ imprisonment when sentencing Ms Hansen.2  In some respects, her involvement was greater than yours because she drove one of the vehicles in the convoy that took the victim away from her address and she later drove another member of the group to a bank ATM where money was withdrawn from the victim’s account.  Like you, she was involved at the time the initial plan was formulated but her role at that stage was as a driver whereas you were to be available to provide “muscle” if needed.   It is probably fortunate for you that your intervening incapacitation prevented you from continuing in this role.   Otherwise, the starting point would have been higher. However, as it turned out, your role reduced to that of a lookout and you had no direct personal contact with the victim at all.   You did not expect to be paid for your participation, nor did you receive anything for it.

[14]     Taking all matters into account, I consider that a starting point of three years’

imprisonment is appropriate in your case.

Personal mitigating factors

[15]      You are entitled to credit for your prior good character and lack of previous convictions.   I accept that this offending was out of character and that you are

1      R v Paleaaesina [2017] NZHC 619.

2      R v Hansen [2017] NZHC 449.

genuinely remorseful and highly motivated to live an offence-free life from now on. You have strong support from your family and other members of the community.  I allow a discount of five months for these factors.

Guilty plea

[16]     Lang J indicated that he would allow a seven month discount for your guilty plea and I agree that this would be appropriate, though generous.

Adjusted end sentence

[17]     Applying these discounts to the starting point results in an end sentence of

24 months’ imprisonment.

Home detention

[18]     Because your adjusted end sentence is 24 months’ imprisonment, I am required to consider whether you should be sentenced to home detention rather than imprisonment.   I have come to the conclusion that the least restrictive outcome appropriate in the circumstances is a sentence of 12 months’ home detention.   In reaching this conclusion, I take into account your limited role in the offending, your acceptance of responsibility for it, your high motivation to live an offence-free life and your genuine remorse. I also take into account that you are a person of otherwise good character and your current offending can be viewed as an aberration.  You are assessed as having a low risk of reoffending or causing harm to others.  The strong continuing support of your family is a significant factor that I take into account.

[19]     In conclusion, although kidnapping is a very serious offence which would normally require a sentence of imprisonment, I consider that your offending can be met by a sentence of home detention.   You have narrowly escaped a sentence of imprisonment. I hope you take advantage of that, learn from it and realise the potential you undoubtedly have to live a good and successful life.

Sentence

[20]     Mr Paleaaesina, would you please stand.   On the charge of kidnapping, I

sentence you to a term of 12 months’ home detention.

[21]     You are to travel directly from the Court to 31 Fairview Road, Papatoetoe, and await the arrival of a Field Officer.  You are to reside at that address and not move to any new residential address without the prior written approval of a Probation Officer.

[22]     You are to attend an assessment for any appropriate programme as directed by a  Probation Officer.   You  are  to  attend  and  complete  any counselling  treatment programme, or as recommended following the assessment as directed by, and to the satisfaction of, a Probation Officer.

[23]     You are not to possess, consume or use any alcohol or drugs not prescribed to you.

[24]     You are not to associate with or contact your co-offenders without the written approval of a Probation Officer.

[25]     The standard post-detention conditions are to apply.

[26]     You may now stand down.

M A Gilbert J