R v Pikia HC Invercargill CRI 2009-025-3777
[2011] NZHC 556
•14 June 2011
FINAL ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF VICTIM.
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2009-025-003777
CROWN
v
GENE LYNDON TAI PIKIA
Appearances: M J Thomas for Crown
H T Young for Prisoner
Judgment: 14 June 2011
SENTENCE OF HON JUSTICE FRENCH
[1] Gene Lyndon Tai Pikia, following pleas of guilty you appear for sentence this morning on six counts: kidnapping, injuring with intent to cause grievous bodily harm, robbery, demanding with menaces, dangerous driving causing injury and male assaults female.
[2] You were also charged with an alternative charge of attempted murder, but a jury acquitted you of that charge. For completeness I should also record that, although you had pleaded guilty to aggravated robbery, I granted an application this morning for leave to withdraw that guilty plea on the grounds that the evidence at trial did not support a charge of aggravated robbery. It did, however, support a
charge of robbery simpliciter, and you accordingly pleaded guilty to that count.
R V PIKIA HC INV CRI-2009-025-003777 14 June 2011
Facts of the offending
[3] At approximately 11.20 p.m. on 13 September 2009 you were driving a motor vehicle on Lindisfarne Street in Invercargill at speed. You lost control, mounted the footpath and hit a pedestrian, a young woman who was walking home after finishing a night shift at work.
[4] As a result of being struck by the car, the victim suffered injuries to her head, legs and body. You stopped, apologised and helped her find her spectacles.
[5] Because neither of you had a cellphone to ring an ambulance, you offered to take her in your car to the hospital. As you drove towards the hospital, however, you became increasingly concerned and panic-stricken about being photographed and losing your licence. You turned into the road where the hospital is situated, but drove past all the entrances and then started heading out towards Bluff.
[6] This unexpected turn of events was obviously extremely frightening to your passenger. She started to cry, pleading with you several times to stop and let her out, but you refused, even although you knew she was injured and bleeding. At one point you told her to jump out, but as she tried to open the door you accelerated.
[7] You drove on to Tiwai Road and then turned into a lonely and dark country road. You stopped the vehicle. The victim grabbed the door to get out, but you physically held her back and demanded she give you her wallet. She duly handed over the wallet, which you then put in the middle console of the vehicle. You told her to get out of the vehicle, which she did. As you in turn started to get out of the vehicle, she retrieved her wallet and put it in her handbag. However, you then demanded the handbag and grabbed it from her before launching a physical attack.
[8] The exact sequence of the events that happened next is not entirely clear, but there is no question that during this attack you attempted to strangle the victim, using your hands to squeeze her throat, punched her five or six times about the face, eye, jaw and the back of her head, grabbed her in a headlock and then pinned her to the ground and began to strangle her again. The victim could not prise your hands off her throat, so pretended to be unconscious. You suspected she was faking, so
continued to apply pressure. Things started to get fuzzy for the victim. In desperation, she managed to bite your finger, break free and run away.
[9] She ran off into the dark, floundering around, disoriented and lost without her spectacles and receiving shocks from electric fences, no doubt petrified that you were coming after her.
[10] You in fact did not do that. You drove back to Invercargill, spoke to family members and then went to the police station to confess. The police finally located the victim at approximately 3 a.m.
[11] When asked for an explanation for your bizarre conduct you said you wanted to knock her out so you could have time to think.
Reports
[12] I have read the victim impact report. You subjected the victim to an unimaginably terrifying ordeal. It was indeed the stuff of nightmares. She believed several times that she was going to die during that night. She suffered physical injuries, emotional harm and even financial loss. She is, however, a young woman of quite remarkable resilience and courage, as was demonstrated when she gave her evidence and again in this victim impact report. She is determined not to let this affect her too much, and even says that she feels sorry for you.
[13] In addition to the victim impact report I have read the pre-sentence report, your letter of apology, as well as a letter from your partner and the partner’s grandmother. I found the letter from the partner particularly informative.
[14] The pre-sentence report tells me you are 28 years of age. Both you and your family say you are not a violent person, but these are not your first convictions for violent offending. In 2002 you were convicted of three charges of injuring with intent to do grievous bodily harm and one offence of male assaults female. On that occasion you stabbed three people and were sentenced to a term of imprisonment of three years.
[15] In the report, the factors identified as having contributed to the current offending are a propensity for violence, offending-supportive attitudes and entitlements and drug abuse. You are a regular cannabis user, at one point smoking about every two hours. You say you were using cannabis when this offending took place.
[16] Your family describe you as a caring and helpful person. They say this offending is out of character. The 2002 convictions belie that, but I accept that some of your conduct that night to me showed glimmers of the decent person you would really like to be. The report, however, says of your risk of reoffending that it is moderately high, and your risk to others high given the level of violence inflicted on the victim.
Sentencing analysis
[17] I turn now to explain the sentencing decisions I have to make today.
[18] First and foremost I must apply what are called the purposes and principles of sentencing that are in the Sentencing Act 2002.
[19] Of particular relevance as regards the purposes of sentencing in this case are the need to hold you accountable for what you have done, the need to promote in you a sense of responsibility, the need to denounce your conduct, and by that I mean the need to express the community’s condemnation and rejection of your offending. There is also the need to protect the community from you. Another important purpose of sentencing is to provide for the interests of the victim and to deter you and others from committing the same or similar offences.
[20] In terms of the principles of sentencing, the principles of particular relevance to this case are the seriousness of the offending, sentencing consistency and consideration of the effect of the offending on the victim. I must also be mindful of my obligation to impose the least restrictive outcome appropriate in the circumstances.
[21] Those, then, are what we call the principles and purposes of sentencing.
[22] I need also to explain to you that in applying those principles and purposes, I am required to follow what can loosely be called a two-stage approach. In the first stage I have to fix what you have heard the lawyers call the starting point. What that means simply is the sentence which reflects the culpability or blameworthiness associated with your offending. That is the first stage. The second stage is that, having fixed the starting point, I must then look to see whether your personal circumstances warrant any adjustment to the starting point, either up or down.
[23] Turning to the first stage, which is fixing the starting point.
[24] I take as the lead offence the most serious charge, which is the kidnapping charge. Because the circumstances of kidnappings are so variable, there is no tariff or guidelines case for me to follow.
[25] The lawyers disagree about what is the appropriate starting point. The Crown says nine years. Mr Young says that is too high, and it should be six years.
[26] I identify the key aggravating features of your offending as being:
(i)The high level of violence. Courts rightly view strangulation as very serious because it is so dangerous.
(ii)The vulnerability of the victim, who was of course already injured as a result of your dangerous driving.
(iii) The effect on the victim. (iv) The robbery.
(v) The dangerous driving.
(vi)The fact that the offending occurred over a long period of time. Although the detention itself was of relatively short
duration, the whole series of events was for a reasonably long period of time.
[27] The lawyers have referred me to a number of cases.1
[28] I agree with Mr Young that there was not the level of pre-meditation in your case as in some of the other cases. My impression at trial was that it all just escalated out of control as you took one silly, panicked decision after another until you felt there was no turning back. On the other hand, the level of violence inflicted was in some ways more serious than in some of the other cases. As I have said, the Courts rightly take strangulation very seriously.
[29] Having regard then to the key aggravating factors, the comparator cases and the totality principle, I consider that an appropriate starting point is seven years of imprisonment.
[30] Turning then to the second stage, and that is to consider factors relating to you personally, as distinct from the offending.
[31] Unfortunately, there is an important aggravating factor relating to you personally, and that is those previous convictions for violent offending. On account of those, I consider an uplift of a further six months is warranted.
[32] You are, however, entitled to a credit for your early guilty pleas. These were entered at a time when the Court of Appeal decision of Hessell2 was still considered to be good law, and accordingly I am prepared in those circumstances to give you a full third discount for those early guilty pleas. Because of that, it is unnecessary for me to consider Mr Young’s submissions regarding remorse. Under the Court of
Appeal decision in Hessell, remorse is subsumed within the discount for the guilty
1 R v Wyatt [2009] NZCA 464; R v Hall CA296/05, 28 February 2006; R v Kimber HC Rotorua
CRI-2003-070-006113, 19 June 2005; R v Hill HC Rotorua CRI-2005-063-003096, 27 October
2006; R v Wharton (2003) 20 CRNZ 109 (CA); Solicitor-General v Nahu CA309/98, 28 October
1998. See also R v Hetherington CA227/01, 27 September 2001; R v Tana CA49/91, 7 October1991.
2 R v Hessell [2010] 2 NZLR 298.
plea, and I do not consider that the remorse in this case could be described as
“exceptional” to justify an additional discount.
[33] That then brings me to an end sentence of five years’ imprisonment.
[34] The Crown has applied for an order that there be a minimum period of imprisonment, ie a non-parole period.
[35] I am satisfied that the seriousness of this offending is such that parole at the normal minimum of one-third would be insufficient to achieve the purposes of sentence specified in s 86(2) of the Sentencing Act. In considering the length of that non-parole period, I must take into account all the circumstances both of the offending and of you personally, as well as sentencing principles and purposes. The factors I must take into account, and do take into account, include the fact emphasised to me by Mr Young that you did at least hand yourself in to the police and you did assist them in finding the victim. That is indeed relevant. On the other hand, I am concerned that you appear to lack insight into your offending when you apparently do not consider yourself to be a violent person. Further, the risk to the safety of others is said to be high. This was very serious offending.
[36] Accordingly, looking at all the circumstances, I have decided that there should be a minimum period of imprisonment of three years.
Sentence
[37] Gene Lyndon Tai Pikia, on the count of kidnapping you are convicted and sentenced to a term of imprisonment of five years. On the count of injuring with intent to cause grievous bodily harm you are convicted and sentenced to a term of imprisonment of four and a half years, to run concurrently with the five years. On the count of robbery you are convicted and sentenced to a term of imprisonment of three years, concurrent. On the count of male assaults female you are convicted and sentenced to a term of imprisonment of 18 months, concurrent. On the count of demanding with menaces you are convicted and sentenced to a concurrent term of imprisonment of 18 months. On the charge of dangerous driving causing injury you
are convicted and sentenced to a term of imprisonment of 12 months, concurrent. You are disqualified from holding a driver licence for two years.
[38] Finally, there will be a minimum period of imprisonment of three years.
Solicitors:
Crown Solicitor’s Office, Invercargill
H T Young, Invercargill
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