R v Pepene HC Auckland CRI 2009-044-7883

[2010] NZHC 2235

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-007883

REGINA

v

CLEM WILLIAM JAMES PEPENE

Hearing:         13 December 2010

Counsel:         J C Gordon and S McColgan for Crown

I D Tucker for Prisoner

Sentence:       13 December 2010

SENTENCE OF THE HON. JUSTICE FRENCH

Clem William James Pepene:

[1]      You appear for sentence this morning on two charges, one count of murder and one count of offering to supply methamphetamine, a jury having found you guilty of both charges.

Facts of the offending

[2]      On 11 May last year, you were at the Avondale house of a close friend, Junior Dillon.   Mr Dillon’s partner and your partner are sisters.   Mr Dillon had arranged to sell half a gram of methamphetamine for $300 to an associate called

Greg Elliott. You decided to go with Mr Dillon to the North Shore to do the deal.

R V CLEM WILLIAM JAMES PEPENE HC AK CRI-2009-044-007883  13 December 2010

[3]      On arrival at the agreed meeting place you and Mr Dillon discovered that it was not actually Mr Elliott who was going to be buying the drugs but Mr Elliott’s friend, a Mr Chong and that you were to go to Mr Chong’s place which was down the road to get the money.  You did not know Mr Chong, although Mr Dillon did. Mr  Chong  was  himself  a  dealer  in  methamphetamine  but  also,  on  occasion, purchased from others.

[4]      You and Mr Dillon went into Mr Chong’s kitchen.  Mr Chong produced the

$300 which you counted and pocketed.   However, you and Mr Dillon refused to hand over the drugs but said you wanted more money.   According to Mr Dillon’s evidence, $300 was a low price and he had only agreed to it as a special favour when he thought it was Mr Elliott who was going to be doing the buying.  Mr Chong got angry.  You and he exchanged heated words and then the argument escalated into violence.

[5]      There was a conflict in the evidence as to exactly what happened.   Your account is that Mr Chong struck the first blow by suddenly punching you in the head and threatening you, whereas Mr Elliott says there was a lot of mutual pushing and shoving but that Mr Chong never punched or threatened you.

[6]      The fight spilled out from the kitchen into Mr Chong’s workshop.  It was all over in a matter of minutes but at some point you used a knife which the Crown contends  you  had  brought  with  you  but  which  you  say  you  picked  up  from Mr Chong’s kitchen table when he punched you.  You inflicted three stab wounds – one in the face by Mr Chong’s left cheek, one by his left ear and one in the chest area.  The two in the face area caused only superficial lacerations but the stab wound to the chest proved fatal.   The knife penetrated Mr Chong’s body, puncturing his aorta and causing haemorrhaging.  In evidence, the pathologist confirmed that only a moderate  degree  of  force  would  have  been  required.    Despite  being  stabbed, Mr Chong remained on his feet and tried to prevent you leaving the premises.  You picked up a sledge hammer from inside the workshop and threatened him with it before running out the door.   Mr Chong stumbled outside and then eventually collapsed.

[7]      You and Mr Dillon fled the scene, Mr Dillon texting Mr Elliott telling him to keep his mouth shut, blame it on two Pacific Islanders and to get rid of your hat which you had left behind.

[8]      Mr Elliott called the emergency services.  They tried to revive Mr Chong but without success and he was pronounced dead.

[9]      Meantime you and Mr Dillon attempted to hide your tracks by washing and burning the clothes you had been wearing.

[10]     When  spoken  to  by police,  you  initially lied  saying that  Mr  Chong had already been stabbed when you and Mr Dillon first arrived at his premises.   Later you admitted stabbing Mr Chong and amongst other things said you were angry and had snapped.

[11]     I am satisfied from the evidence that you did not deliberately set out or mean to kill Mr Chong but, as the jury must have accepted, by stabbing him in the chest area you did intend to cause him some bodily harm knowing that death was likely to be caused yet carried on regardless.  In finding you guilty, the jury must also have been satisfied that this was not a situation of self defence.

Victim Impact reports

[12]     I have read the victim impact reports from Mr Chong’s mother and four of his sisters.  The reports make for very sad reading.  Mr Chong was a much loved son, brother and uncle.   It is no exaggeration to say that his shocking and violent death has been devastating for his family.   They are distraught, overwhelmed by grief and a burning sense of anger.  They have suffered greatly as a result of what you have done and will continue to suffer.  Mr Chong has been deprived of his life and theirs will never be the same again.

Pre-sentence report

[13]     In addition to the victim impact report, I have also read the pre-sentence report.

[14]     It tells me that you are 28 years of age and the father of two small children.

[15]     Your own childhood after age 7 was not a happy one, spent as it was in a series of children’s homes and then on the streets.   You had very limited formal education and do not appear to have ever held a regular job, or at least not for any length of time.

[16]     You have an extensive criminal history having been convicted of some 74 previous offences.  Significantly, these previous convictions do include offences for violence, male assaults female convictions in 2008, 2005 and 2004, assaults on police in 2003, 2002 and 2001, assault with intent to injure in 2000 and aggravated robbery in 1998.   There have been no gaps in your offending history since 1998. Indeed you committed this murder only five weeks after being released from custody and while still subject to release conditions.

[17]     The report writer describes you as a man deeply entrenched in offending behaviour and living a pro criminal lifestyle, two of the significant factors in your offending being identified as alcohol and substance abuse and a propensity to violence.  You are assessed as posing a high risk of reoffending and as posing a high risk of causing harm to the public.

[18]     On the more positive side, although the report writer found it difficult to determine the extent to which you took responsibility for your actions, the report acknowledges that you appear genuinely remorseful.   I do not share the Crown’s scepticism about this.  I accept that you are genuinely remorseful.  I accept too that you do understand the enormity of what you have done and the harm you have caused.   Also to your credit are your plans to make use of the time in prison by undertaking some educational courses in the hope of bettering yourself.   This was something you mentioned to your partner in the taped phone calls from prison and I accept these are genuinely held plans.   Those taped phone calls also revealed that you really love your children and they you, yet sadly it seems even before all of this happened that the authorities had to limit your contact with the children because of your substance abuse and your aggressive behaviour.  My take from the report is that

if you could only control those two things you would go a long way towards being the sort of man that you really want to be.

Sentencing analysis

[19]     I turn to explain the sentencing decisions which I am required by law to make today.

[20]     In deciding what is the appropriate sentence, I must take account of a number of provisions in the Sentencing Act.   These include the general principles and purposes of sentencing as well as specific provisions which apply in the case of murder.  I must also take account of the sentences that have been imposed by other Judges in other similar cases.

[21]     Under the Sentencing Act, where a person is convicted of murder the Court must  impose a sentence  of  life  imprisonment  unless  such  a  sentence  would  be manifestly unjust.

[22]     Counsel accept that on the facts of your case a sentence of life imprisonment is  the  correct  sentence.     I  agree.     You  will  therefore  be  sentenced  to  life imprisonment.

[23]     Secondly, under New Zealand law even although a person has received a life sentence, they may nevertheless apply for parole.  Parliament has therefore required that where a Judge imposes a life sentence for murder, the Judge must at the same time also fix the minimum period of imprisonment the offender must serve before being eligible to apply for parole.  This is commonly called the minimum non-parole period.    It  must  not  be  less  than  10  years  or  such  other  greater period  that  is necessary to satisfy all or any of the following purposes:

(a)holding you accountable for the harm you have done to the Chongs and the community;

(b)denouncing  your  conduct  by  which  I  mean  expressing  society’s absolute condemnation of your conduct;

(c)     deterring you or others from committing similar offences.   There is widespread community concern about knife attacks, and

(d)     protecting the community from you.

[24]     In addition, there is a special category of murders where Parliament has held that the minimum non-parole period is to be 17 years.  However, I agree with the lawyers that your case is not in any of the specified categories.  In particular, I am satisfied this was not a home invasion and that you did not kill Mr Chong in order to further the drug deal.

[25]     It follows from all of that that the key issue I have to decide is whether the minimum non-parole period should be more than 10 years and, if so, how much more.

[26]     The Crown say it should be 11 years on account of the aggravating features of the offending with a further small uplift for the purpose of protecting the public (s103(2)(d) Sentencing Act 2002) on account of your previous convictions and the fact  the  murder  occurred  while  you  were  on  release  conditions.    Your  lawyer, Mr Tucker, accepts 11 years is appropriate but submits that to be consistent with another case R v Rogers,[1] there should be no further uplift.

[1] R v Rogers CRI-2006-092-4995 HC Auckland, Priestly J.

[27]     In fixing the term, my focus must be on the four purposes I have mentioned, namely  holding  you  accountable,  expressing  society’s  condemnation  of  your conduct, deterring you and others and protecting the community.

[28]     I must also identify the aggravating and mitigating factors relating to the offending and to you personally in so far as they bear on the four purposes.

[29]     I identify the aggravating features of your offending as being: (i)      the use of a weapon;

(ii)     the extent of the harm caused;

(iii)    the fact the offending took place in the context of a drug deal;

(iv)    efforts to avoid prosecution.

[30]     At trial there was an issue whether you brought the knife with you or picked it up from Mr Chong’s table.  While the jury’s verdict is not necessarily dependent on the fact of your having brought the knife with you, I am satisfied on the evidence that you did bring it with you and that for sentencing purposes this is therefore a fifth aggravating factor.

[31]     Mr Tucker submits there is a mitigating factor relating to the offending, namely  the  possibility  that  this  was  a  case  of  excessive  self  defence.    On  the evidence, I am however unable to accept that submission.

[32]     In my view, before turning to factors relating to you personally, a minimum non-parole period of 11 years would be appropriate.

[33]     Unfortunately, as I have already noted, there are some significant aggravating factors relating to you personally, namely your previous convictions for violence and the fact you were on release conditions at the time.

[34]     I also accept there are mitigating factors relating to you personally, namely your remorse and your resolve to do something about the causes of your offending. Mr  Tucker  has  also  drawn  to  my attention  your  willingness  to  plead  guilty to manslaughter.

[35]     After giving the matter a great deal of thought, I have decided that a greater period than 11 years is not required in order to satisfy the four purposes.   The minimum non-parole period will therefore be 11 years.

[36]     I must add so it is clear to you and the Chong family that this does not mean you will be automatically released at the end of 11 years.  What it means is that at the end of 11 years, you will be eligible to apply for parole.  Your actual release is a matter for the Parole Board.  And, of course, if you are released, you will remain on parole for the rest of your life.

Sentence

[37]     Clem William James Pepene, on the charge of the murder of Paul Chong you are convicted and sentenced to life imprisonment with a minimum non-parole period of  11  years.    On  the  charge  of  offering  to  supply  methamphetamine,  you  are

convicted and sentenced to a concurrent term of imprisonment of seven months.

Solicitors:

Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140 for Crown

Tucker & Co, Private Bag 93572, North Shore City for Prisoner