R v Roker
[2017] NZHC 1637
•17 July 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-012-000456 [2017] NZHC 1637
THE QUEEN
v
SHAAN ROKER
Hearing: 17 July 2017 Appearances:
R D Smith for Crown
A Stevens for DefendantJudgment:
17 July 2017
SENTENCING REMARKS OF GENDALL J
R v ROKER [2017] NZHC 1637 [17 July 2017]
[1] Mr Roker you can remain seated. I will ask you to stand in a moment.
[2] Shaan Roker, you appear for sentencing today on two charges to which you have pleaded guilty:
(a) A charge of wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961, which carries with it a maximum penalty of 14 years’ imprisonment.
(b) A charge of male assaults female under s 194B of the Crimes Act
1961, which carries with it a maximum penalty of two years’
imprisonment.
[3] I propose first, to outline the facts relevant to your offending, Mr Roker, followed by a brief discussion of the relevant purposes and principles of sentencing. I will then determine the appropriate starting point for your offending, followed by an assessment of any uplifts or discounts which may be warranted by circumstances of your offending, or by circumstances personal to you.
[4] The charge of wounding with intent to cause grievous bodily harm is clearly the more serious charge, and I take that as the lead offending in your case.
Factual Circumstances of the offending
[5] Mr Roker, you are known to both of your victims. The victim in respect of the male assaults female charge is your ex-partner, with whom you have two children. The victim in respect of the wounding charge is the father of your ex- partner and the grandfather of your two children.
[6] The charges arise out of events which occurred on 21 February 2017. Previously you had been living in Australia, where you are originally from. You had come to New Zealand only one week before the incidents in question, apparently to help your ex-partner with problems she had been having in her own life, including drug-related problems and an allegedly abusive former boyfriend.
[7] At 9:30am on the morning in question, you and the female victim were at a residential address where you were both planning to live. You were arguing about your alleged drug use. Mr Roker, you were asked to leave the address, and the victim began to remove some of your personal items from the house. During the course of the argument you struck the victim with your arm, making contact between your elbow and the victim’s head. This was then followed by a secondary strike to her head with an open hand.
[8] Later, at approximately 11:45 a.m. that morning the male victim, who was also living at that address, returned. You and the female victim were still arguing. He asked you to leave when he heard how you had struck his daughter. A physical altercation between you and the male victim then ensued. It appears the victim may have got the upper hand, restraining you in a hold on the ground until you agreed to leave, as asked. Upon being released, you retreated from inside the address outside to where your possessions had been placed. Taking a machete from among them, you then turned back to the victims who had followed you, and moved towards them. You raised the machete above your head, and brought it down on the male victim, who attempted to block it by raising his left hand to protect his head. The resulting blow from the machete severed the victim’s hand just above the wrist.
[9] At this point you stopped your attack. The victims retreated inside to the bathroom within the house. You soon followed, continuing to shout at the female victim, and smashing a window of the house with the machete. Although initially the female victim prevented entry to the bathroom, understandably unsure of your motives and what you might do, you did eventually get access to the bathroom when she went outside to call emergency services. At this point, it is accepted that you tried to aid the male victim as best you could, applying a tourniquet above the wound to slow the bleeding.
[10] Although you initially denied the assaults on the female victim, you accepted the facts of the attack against her father, although in explanation, Mr Roker, you say you took hold of the machete out of fear of the male victim.
Purposes and principles of sentencing
[11] Turning now to the purposes and principles of sentencing, these are contained in ss 7 and 8 of the Sentencing Act 2002. Of particular relevance here are the purposes of denunciation and deterrence, the need to hold you accountable and responsible for the harm you have caused, and the need to provide for the interests of your victims.
[12] In terms of relevant sentencing principles, I must impose a sentence consistent with similar offending and authority, and have regard to the effects of your offending on your victims, as well as any factors specific to you which might bear on the proportionality of any sentence to be imposed.
The appropriate starting point
Lead wounding charge
[13] The lead offending in this case is governed by the guideline judgment in R v Taueki.1 In that case, the Court of Appeal set out bands for this type of offending according to degrees of seriousness.
[14] I consider that your offending, Mr Roker, falls into Band three of the Taueki guidelines, which suggests starting points in the range of nine to 14 years’ imprisonment. That Band reflects serious offending where there are three or more relevant aggravating factors present to such an extent as to make the offending overall “particularly grave”. I consider there are such factors present here. Apparent in your offending is an extreme level of violence, exhibited in the manner of the attack and its consequences. There is, of course, the serious and potentially irreparable injury you caused to the victim. You severed his hand to the point where it was hanging by skin alone. Extensive reconstructive surgery was required, and the long term efficacy of that remains unclear. The emotional and ongoing impact on the
victim also cannot be understated.
1 R v Taueki [2005] 3 NZLR 372.
[15] Further, you inflicted the damage with a machete, a weapon which could well have resulted in lethal consequences. Your victim was significantly older than you. He required the use of a crutch for his mobility, rendering him to some degree especially vulnerable to you. This is to some extent tempered by the fact that you and the victim were previously engaged in a fight in which, to force your departure from the property, it seems he got the upper hand. However, it is the vulnerability of the victim at the time he was then attacked by you with a machete, which is the primary consideration, and at this point there was clearly a degree of imbalance.
[16] Against that, and whilst not a mitigating feature of the offending per se, you say you were in a state of serious emotional upset, brought on by the arguments with your former partner that day. You say the victims had sought to vilify you in circumstances where you considered you were here in your ex-partner’s life trying to help. You had been accused of illegal drug-taking, but as it happened this did not appear to be the case. As for the possession of the machete, you say that had been recently purchased because of perceived fear of your ex-partner’s former boyfriend. These considerations cannot in any sense be considered excuses or justifications for your actions, but they do provide some context for the events of that day.
[17] Your offending is of a level of seriousness not at the top of the relevant range of the relevant Band, but neither is it at the bottom of the applicable range. To varying degrees this is accepted by counsel, where the Crown submits a starting point of 10 and a half years imprisonment, to 11 and a half years, and your counsel, Mr Roker, nine to 10 years’ imprisonment. The Crown accepts regard should be had to your attempts to mitigate the extent of your violence by rendering assistance, and I agree. That assistance was perhaps not immediate, but that was in part due to you, understandably, being prevented access to the victim. Overall, the effectiveness of your assistance is perhaps unclear. This is so, especially in terms of the victim’s long-term prognosis, and the possible ability of the female victim, your former partner, to have rendered assistance instead of you. However, it is a relevant factor, and also one indicating remorse, to which I refer later. In these circumstances, the Crown accepts that a starting point some five to 10 per cent lower may be justified.
[18] Overall, and having regard to all of the circumstances of the offending, I consider that the appropriate starting point here on the charge of wounding with intent to cause grievous bodily harm is 10 years’ imprisonment.
Uplift for male assaults female charge
[19] I turn now to the charge of male assaults female, being your assault on your former partner. Your counsel, Mr Roker, effectively submits that the level of offending is such that, in conjunction with your guilty pleas, it would not normally result in a sentence of imprisonment. Therefore, she says that whilst I should sentence you to a short sentence of imprisonment concurrent with the lead offending, I should not uplift the overall starting point. By way of contrast, the Crown submits that an uplift of four to six months is appropriate here.
[20] The assault charge arises generally out of the same series of events as the wounding charge, but this is only in the sense that it relates to an earlier altercation the same day. It is not proximate to the later violence against your ex partner’s father such that it would be seen as inseparable from that.
[21] It seems clear that this was your first instance of physical violence against the victim and fortunately that your children did not witness it. There was no significant lasting injury to your ex-partner, although the assault did cause bruising and swelling to her cheekbones, right ear, and right eye. Additionally, there are ongoing traumatic effects for her as a result of your overall offending, although that is also bound up in her presence at your attack on her father.
[22] Overall, this aspect of your offending might be seen as comparatively minor, although it is not at the very low end of offending of its kind. It is offending demanding censure. Whilst I accept that it is likely that it would not on its own, result in a sentence of imprisonment, a short custodial sentence would certainly be the starting point.
[23] I therefore propose to uplift the starting point by three months, resulting in a global initial starting point of 10 years three months’ imprisonment.
Aggravating and mitigating factors relating to the offender
[24] I turn now to the factors personal to you, which bear on the starting point I
have reached.
Previous criminal history/good character
[25] Your record of previous criminal offending, Mr Roker, is slight, reflecting a handful of driving-related convictions in 2016. They are recent, but comparatively minor, and they are not previous convictions relevant to the current offending which would warrant an uplift to the starting point. That, in itself, represents a lack of an aggravating feature, and not the presence of a mitigating factor. However, your counsel, Mrs Stevens, has advocated that there is evidence of your previous good character which should be taken into account. She refers to various testimonials from family and your employer as to your character which are before the Court.
[26] Overall, and in the context of your recent, although unrelated, criminal history, evidence as to your character is perhaps equivocal, and, in my view, any credit for this must be slight.
Remorse
[27] Credit for remorse is at the discretion of the Court. On the principles outlined by the Court of Appeal and Supreme Court in Hessell, it generally must be “exceptional”.2 There is some evidence before the Court of your apparent remorse for your actions. As I have already mentioned, immediately after the offending you remained on the scene to offer what assistance you could, which is to your credit. To the extent I have already factored that in to the appropriate starting point, I must be
careful not to double count it here, but it is at least an indicator of some possible remorse. There is too the offer you have made to attend a restorative justice conference, arrangements for which were being made at the time you pleaded guilty to these offences. That ultimately did not take place, and of course, you have no right to that process going ahead. I have also been referred to an offer by you of a
sum of money that you have available, $2,000, an offer made to your victims as an
2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; R v Hessell [2009] NZCA 450, [2010] 2 NZLR
298.
emotional harm payment. The Court has also been provided with letters of apology, which you have written in lieu of the restorative justice process.
[28] In the circumstances, I consider that you are entitled to some credit for your expressions of remorse, which are demonstrable and clearly exhibited here.
Other mitigating factors
[29] Finally, your counsel, Mrs Stevens, has referred to a number of other circumstances which are said to be mitigating factors.
[30] There is some evidence before the Court of ongoing health problems you have, some of these are related to a hedge-cutting incident a number of years ago, which resulted in the loss of two of your fingers and continuing pain. Reference is also made to ongoing Post Traumatic Stress Disorder related to an unhappy upbringing.
[31] There is no doubt you will be serving a moderately lengthy sentence of imprisonment here in New Zealand, Mr Roker. Mrs Stevens, your counsel, refers to the fact that your father has recently passed away, and that much of your family will be located in Australia during the time you are incarcerated. The nature and consequences of your offending are such that effectively you are unlikely to be a part of the lives of your children and your former partner. I therefore acknowledge that the effects of imprisonment may, to some degree, be severe for you because of these circumstances.
[32] Your counsel contends that, taking all of these mitigating factors together, a discount of 25 per cent is appropriate. I reach a somewhat different position. Having regard to all these circumstances, but particularly your expressions of remorse and the somewhat disproportionate effect imprisonment may have on you, I consider a discount of 15 per cent is appropriate.
[33] Applying that discount to the initial starting point, I therefore reach an adjusted sentence of eight years eight months’ imprisonment, before turning to the matter of your guilty pleas.
Guilty pleas
[34] You pleaded guilty, Mr Roker, to the charges you are facing on 5 May 2017. That was the same time at which a charge of attempted murder, which you previously faced, was withdrawn.
[35] In these circumstances, your counsel submits you should be entitled to the full 25 per cent discount which, in the ordinary course, is available for guilty pleas entered at the earliest possible opportunity. To an extent, this seems to be accepted by the Crown, who acknowledges the early timing of the pleas in the context of the attempted murder charge being withdrawn. However, Mr Smith for the Crown does refer to comments made by the Supreme Court in Hessell v R that timing is not the sole factor for consideration, and that the strength of the case against you is a relevant consideration.
[36] Overall, I consider that your pleas were entered at a very early stage of the proceedings. They were entered immediately upon the withdrawal of a very serious charge, and within a few months of this offending occurring. Your victims have been spared the ordeal of a defended trial, and the need to give evidence about what must, for them, still be a traumatic event. The case against you on the charges for which you are being sentenced was, I accept, was strong. However, you were entitled to initially take the position you did, questioning the attempted murder charge and seeking to clarify certain factual matters, at least to the point at which this much more serious charge of attempted murder was withdrawn. I therefore consider the full 25 per cent credit for your guilty pleas is appropriate here.
[37] Accordingly, in applying this, I reach an end sentence of six years six
months’ imprisonment.
Minimum period of imprisonment
[38] The Crown has submitted that you should be subject to a minimum period of imprisonment for your offending. The imposition of a minimum period of imprisonment (MPI) is governed by s 86 of the Sentencing Act. It may be imposed where the Court is not satisfied that the normal minimum period of imprisonment
under the Parole Act will be sufficient to meet certain sentencing purposes. These include requirements to hold an offender accountable for harm caused, denunciation, deterrence, and protection of the community.
[39] The Crown refers to those sentencing purposes, all of which are patently relevant here, and to which I have already referred. Given the seriousness of your overall offending, Mr Roker, and the violence exhibited by you, there is a clear need to denounce and deter your conduct, and to an extent there is a community protection element at play here as well. As the Crown notes, the Court in Taueki anticipated that MPIs “will not be rare or even uncommon”, in cases where, as here, there has been serious violence and where denunciation and deterrence are primary sentencing
considerations.3 The Crown also appropriately acknowledges the mitigating features
of the offending and those personal to you, but suggests, nevertheless, that an MPI of
“half, or close to half, of the overall sentence” is appropriate.
[40] I consider those mitigating features are also relevant to the threshold question, of whether an MPI is appropriate in your case at all, Mr Roker. Clearly, principles of denunciation and deterrence will be acutely relevant in all cases of serious violence offending, as here. Protection of the community in general is engaged here, although, because of all the personal circumstances of your offending, perhaps not to the extent that it sometimes is in serious violence cases.
[41] The effect of an MPI is to remove the discretion that, in the ordinary course, the Parole Board has to determine the period of imprisonment which an offender actually serves, following the normal statutory minimum period of one third. Ultimately, this Court must be satisfied that the relevant sentencing principles would not be properly met by deference to that discretion.
[42] In my view, however, that is not the position here. I do not consider that a minimum period of imprisonment is required in all the circumstances prevailing in
this case.
3 R v Taueki, above n 1, at [57].
Conclusion
[43] Mr Roker, please stand:
(a) Mr Roker, on the charge of wounding with intent to cause grievous bodily harm, you are sentenced to six years six months’ imprisonment.
(b) On the charge of male assaults female, you are sentenced to three
months’ imprisonment, to be served concurrently with the above. (c) There is to be no minimum period of imprisonment.
Three strikes warning
[44] Mr Roker, given your convictions and sentencing today on a serious violence charge which is a relevant offence under the Three Strikes legislation I must therefore give you your First Three Strikes warning. You will also be given a written notice which contains a list of serious violent offences.
[45] From today, if you are convicted of any one or more serious violent 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.
[46] If you are convicted of murder after this warning then you must be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum terms of imprisonment.
Final name suppression order
[47] There remains the question of a final name suppression order. Nation J in this Court earlier did suppress publication of the victims’ names and identifying detail but not their relationship to the defendant which is a material part of the offending.
[48] I do not see any reason why this suppression should not be made final. There
is to be no suppression order made as to Mr Roker’s name.
[49] A final suppression order is made, however, as to the names and any identifying details of the victims but otherwise not as to their relationship with Mr Roker which is a material part of the offending here.
[50] Mr Roker, please stand down. (Discussion with counsel)
[51] Just remain for a moment Mr Roker. You may be seated.
[52] I make a further order that an emotional harm payment of $2000 is to be made by the defendant to the victims. That payment to be made within 20 working days of today.
...................................................
Gendall J
Solicitors:
RPB Law, Dunedin
Anne Stevens, Dunedin