R v Simeon

[2020] NZHC 1421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-044-001551

[2020] NZHC 1421

THE QUEEN

v

CHRISTOPHER KANE TE KAWA SIMEON

Hearing:	23 June 2020
Appearances:	M R Harborow & E L Woolley for the Crown J-A Kincade QC & A Shendi for the Defendant
Judgment:	23 June 2020
Reissued:	09 October 2020

SENTENCING NOTES OF VAN BOHEMEN J

This judgment was delivered by me on 05 August 2020 and

re-delivered by me on 2 September 2020 in accordance with Criminal Procedure Rules 2012, r 1.6.

Solicitors/Counsel:

Meredith Connell, Auckland J-A Kincade QC, Auckland

Blackstone Chambers, Auckland

R v SIMEON [2020] NZHC 1421 [23 June 2020]

Introduction

[1]    Christopher Kane Te Kawa Simeon, you appear for sentence for the murder of Faletoi Matue late in the evening of 3 May 2019. On 19 May 2020, you pleaded guilty, and Justice Downs entered your conviction and read a first strike warning.

[2]    I begin by acknowledging the presence of Toi Matue’s family, both in court and by audio visual link. I also acknowledge the presence of members of your family, Mr Simeon. It is difficult time for both families and I pay tribute to the families for the restraint and compassion you have all displayed. All of these people have been affected by your actions, Mr Simeon.

[3]    The sentence for murder is life imprisonment.1 I must impose that sentence unless it would be manifestly unjust to do so.2 I am satisfied that your circumstances and the circumstances in which you killed Mr Matue do not make a life sentence manifestly unjust in your case. Neither Mr Harborow, counsel for the Crown, nor your counsel, Ms Kincade, has suggested otherwise.

[4]    The only issue for today is the length of time that you will have to spend in prison before you are eligible to apply for parole.

[5]    Before I consider that question, I must set out the circumstances that brought you to Court today. I regret any distress this may cause to Mr Matue’s family, or indeed, to Mr Simeon’s family.

Facts

[6]    On the night of 3 May 2019, you and Mr Matue were drinking together at an apartment in Central Auckland. Both of you became intoxicated. Later in the evening, around 10:45pm, Mr Matue, you and three others got into a car. Mr Matue, you and a woman were in the rear seats. Two other males were in the driver’s seat and front passenger seat.

1      Crimes Act 1961, s 172.

2      Sentencing Act 2002, s 102(1).

[7]    During a car stop, a scuffle broke out between you and Mr Matue. One of the men in the front seats described hearing a bang and Mr Matue saying to you, “Why did you hit me?” He then saw Mr Matue punch you 15 to 20 times in the face, and elbow you in the face, causing you to bleed from your nose and mouth.

[8]    About half an hour after this, you, Mr Matue and the woman were dropped off at the woman’s house on the North Shore. Shortly after your arrival, there was further fighting between you and Mr Matue, using fists. When the fighting stopped, the woman took you to the bathroom to clean blood off your face. Mr Matue remained in the lounge.

[9]    You then went to the kitchen and picked up two knives, each with 10cm long blades. You returned to the lounge and stabbed Mr Matue four times: twice in the chest, once in the left arm, and once in the right upper back.

[10]The woman ran to the neighbour’s house for help.

[11]   While Mr Matue was lying prone on the floor you stomped hard on his head with steel-capped safety boots. The force of the stomping caused Mr Matue’s head to bounce off the floor.

[12]   After this, you paced around the house, yelling and crying and asking for your mother repeatedly. You then left the property.

[13]   One of the wounds was fatal and Mr Matue died soon after that wound had been inflicted.

[14]   You were found by the Police in a nearby street and were subsequently arrested. You had two knife handles in your pocket. The Police officers observed that you had a large lump on the right side of your forehead, right cheek and a swollen left cheek. Photos taken of you after arrest show large scratch marks and cuts on your face.

[15]   When spoken to by the Police, you said “I stabbed that cunt”, but otherwise declined to comment.

[16]   The pathologist’s  report  assessed  that  an  11.5cm  deep  stab  wound  to  Mr Matue’s upper right chest was fatal, penetrating the chest wall and aorta and collapsing the right lung. Mr Matue also sustained an 8 cm-deep stab wound to the right side of his chest, an 8.5cm-deep stab wound to his back under the right shoulder blade, and a 3cm-deep wound to his upper left arm, as well as cuts to his lower back and chin. The evidence also records that a bone in his larynx was fractured, caused by either a punch or possibly pressure from manual strangulation. While he did not suffer brain or skull injuries, Mr Matue suffered bruising on his right temple and right ear, in patterns consistent with the patterns on your shoe, as well as bruising and abrasions on his face.

Victim impact statements

[17]   We  have  heard  two  powerful  and  painful  statements  by  members  of   Mr Matue’s family. One was from Mr Matue’s sister, Fesilafai Matue, and one was on behalf of the nieces and nephews Mr Matue helped raise. These were hard, very hard to listen to. They were brave statements that shared the loss, love, pain and sorrow the Matue family has been experiencing. But they were remarkable too for the compassion and forgiveness they offer. They demonstrate the love that holds the Matue family together and also the depth of the loss they have suffered as consequence of your actions, Mr Simeon.

Minimum term of imprisonment

[18]   Before I discuss the length of the minimum term of imprisonment it is important that I recall that your actual sentence is life imprisonment. Even if you are released on parole after serving your minimum term, for the rest of your life you will be liable to recall to prison if you reoffend or otherwise breach the terms of parole.

Sentencing Act considerations

[19]   Under the Sentencing Act, the minimum period of imprisonment must hold you accountable for the harm done to Mr Matue and to the community, must denounce

your conduct, must deter you and others from engaging in such conduct in the future, and must protect the community from you.3

[20]   As counsel have reminded me today, the Sentencing Act also sets two specific parameters that I must follow. One is that I must impose a minimum period of at least 10 years.4 The other is that, unless I am satisfied that it would be manifestly unjust to do so, I must impose a minimum period of imprisonment of at least 17 years if your offending falls within the circumstances set out in s 104(1) of the Act. In your case, the relevant consideration is whether your offending was committed with a high level of brutality, cruelty, depravity, or callousness as set out in paragraph (e) of that section.

Crown position on minimum period of imprisonment

[21]   The Crown says that it does, that your killing of Mr Matue and your subsequent actions were of the high level of brutality, cruelty, depravity, or callousness described in paragraph (e) of s 104(1) that would require me to impose a minimum period of at least 17 years. The Crown says there are aggravating features of your offending similar to previous cases in which such a minimum term was imposed because they involved a high level of brutality or callousness.

[22]In particular, the Crown says:

(a)While your attack on Mr Matue was of short duration, it was intense, you used knives with long blades weapons to inflict deep wounds, and you stomped on Mr Matue’s head, they say to ensure his death.

(b)Secondly, you returned to the lounge with weapons after the situation with Mr Matue had cooled off and you escalated things well beyond what had been a verbal confrontation and a fist fight. Other cases have recognised such actions as premeditation.5 In any event, they are an aggravating feature.

3      Sentencing Act, s 103(2).

4      Sentencing Act, s 103(2).

5      R v Millar HC AK CRI-2020-090-5044 [21 June 2011].

(c)Thirdly, the murder was committed in the presence of another person and that this brazen feature of the attack is also an aggravating feature.

(d)Fourthly, you did not seek help for Mr Matue but left the property with Mr Matue dying or dead on the ground.

(e)Fifthly, as we have heard today, Mr Matue’s death and the manner of that death has had a profound effect on Mr Matue’s family.

[23]   The Crown also says there can be no suggestion of provocation by Mr Matue that would mitigate the seriousness of your offending.

[24]   The Crown also says that if I do not consider the threshold for the imposition of a minimum period of imprisonment of 17 years is met, then a starting point in the vicinity of 13 to 15 years would be appropriate when setting the minimum period of imprisonment.

Defence position on minimum period of imprisonment

[25]   Ms Kincade submits that your actions do not cross the high threshold that the Courts have held must apply for the imposition of a minimum period of imprisonment of 17 years based on brutality and callousness. She also submits that if I hold that that threshold has been crossed, I should not impose a minimum period of imprisonment of 17 years because it would be manifestly unjust to do so. Mr Harborow also accepts that point.

[26]   Ms Kincade points out that only one stab wound was fatal and that the evidence was that you used only one knife in the attack, even if you had brought two out from the kitchen. She also says that while your stomping caused injury to Mr Matue’s face and head, it did not cause damage to his brain or skull. This suggests that the force used  for  the  stomping  was  at  the  lower  end  of  the  spectrum.  Although,  as  Mr Harborow has reminded us, the Agreed Statement of Facts records that it was a hard stomp. Ms Kincade also submits that Mr Matue’s other injuries were sustained during the fight preceding your knife attack.

[27]   For these reasons, and having regard to sentences imposed in decisions involving offending that was more serious than the attack on Mr Matue and decisions which, Ms Kincade submits, are more similar to the attack on Mr Matue, Ms Kincade says I should adopt a starting point of 11 years when setting the minimum period of imprisonment.

Discussion

[28]   The Court of Appeal has held that in deciding whether a minimum period of at least 17 years is required in accordance with s 104, I should adopt a two-step approach. First, I should consider the degree of culpability in the case before me, as compared with decisions dealing with similar offending. In doing so, I must have regard to the policy of s 104, which is that if one or more of the factors in the section is present, the murder is sufficiently serious to justify a minimum term of imprisonment of 17 years or more. Secondly, if that first step results in a minimum period of less than 17 years, I must decide whether to impose a minimum period of 17 years would be manifestly unjust.6

[29]   Consistently with the approach taken by Lang J in a recent decision,7 I approach the first step in two parts:

(a)What minimum term should apply leaving aside s 104; and

(b)Is s 104 engaged?

What minimum term should be imposed, leaving aside s 104?

[30]   The Crown submits that your offending is similar to a number of decisions where the offending involving one or a small number of stab wounds and where the Courts imposed minimum periods of imprisonment of 17 years or more.8 However, those were decisions where the Courts held that s 104 was engaged and I put them to one side for the moment.

6      R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54].

7      R v Peeni [2020] NZHC 1352.

8      R v Price [2018] NZHC 811; R v Vea [2019] NZHC 1587; R v Mareikura [2014] NZHC 3244 and

Marong v R [2020] NZCA 179.

[31]   In addition, I consider some of the other cases to which the Crown referred me in support of a minimum period of less than 17 years to be closer to the facts of the present case.9 One involved a knife attack by one man on another after they had been drinking together, had fought and had then stopped fighting, before the defendant took out a carving knife and stabbed the victim. In that case, which did not involve stomping on the victim’s head, a starting point of 12 years was adopted.10 Another involved an unprovoked knife attack by a man after they had had some sort of small scuffle. In that case, a starting point of 11 years was adopted. In a third case, involving a surprise knife attack by one woman on a another after an argument that had apparently ended, the Court also adopted a starting point of 11 years.

[32]   Ms Kincade also referred me to decisions which she said were comparable to the current case, where the Courts adopted starting points ranging from 10 years to 15 years when setting the minimum period of imprisonment.11 Some of these cases involved considerable brutality and callousness, more sustained violence and greater premeditation than were involved in the present case.

[33]   Having regard to the level of violence you used against Mr Matue, the fact you attacked him after the fighting had apparently ended and your female companion had cleaned you up, your decision not only to resume the fight but to bring weapons to it, your stomping on Mr Matue’s head as he lay defenceless on the ground and your failure to lend him any assistance and to depart the scene, and your words to the Police when you were found and also having regard to the decisions to which I was referred by the Crown and by Ms Kincade, I consider a minimum period of imprisonment of 13 years to be an appropriate starting point, before I consider whether s 104 is engaged.

9      R v Browne [2017] NZHC 2389; R v Millar, above n 5; R v Ray [2014] NZHC 599.

10 R v Ray, above n 9

11 Reekers v R [2011] NZCA 383; R v Rewiri HC ROT CRI 2006-063-2149, 22 February 2008; R v McKee HC CHCH CRI 2007-009-017060, 7 August 2008; R v Craig HC CHCH CRI 2007-009- 000695, 30 August 2007; R v Walsh (2005) 21 CRNZ 946; R v Heihei [2017] NZHC 2243; R v Singh [2015] NZHC 2369; R v Momoisea [2018] NZHC 1577; R v Prasad [2018] NZHC 3225.

Is 104 engaged?

[34]   The next question is whether the brutality and callousness evident in the murder of Mr Matue was of the “high level” required to engage s 104 so that a minimum period of imprisonment of 17 years must be imposed.

[35]   The first point to note in this context is that, as sentencing judges frequently recall, all murders are brutal, cruel, depraved or callous to some extent.12 However, the Court of Appeal has made it clear that for s 104(1) to be engaged, only murders that involve one of more of those elements to a high level will be within the section.13

[36]   Having considered that guidance and the decisions to which the Crown referred me, I have concluded that your actions did not involve the high level of brutality and callousness sufficient to trigger the application of the section. In particular, I do not accept that your killing of Mr Matue involved levels of brutality and callousness that were present in at least three of the decisions to which the Crown referred me.

[37]   In one decision, the Court found that the murder had been carried out with a high level of brutality and that there had been a savage and prolonged beating by the participant in the altercation who was the dominant aggressor.14 In another, a much greater number of wounds had been inflicted in front of the victim’s 11 year old child who tried to intervene and was warned he would be next.15 In a third case, where a woman was murdered by strangulation, there was a much greater degree of premeditation, the victim was much more vulnerable and the post-murder conduct was far greater in extent and in degree of callousness.16

[38]   Regarding the fourth decision to which the Crown referred, the Court of Appeal recently upheld the High Court’s decision on the basis that the “frenzied attack” using a machete against a victim who had no chance to defend himself triggered the

12     R v Vea, above n 8, at [35]; R v Mareikura, above n 8, at [41]; R v Peeni, above n 7, at [29]. See also R v Slade [2005] 2 NZLR 526 (CA) at [40].

13     R v Gottermeyer [2014] NZCA 205 at [79].

14     R v Price, above n 8, at [26].

15     R v Mareikura, above n 8.

16     Marong v R, above n 8.

threshold in s 104 because it involved a home invasion.17 But it did not decide which side of the fine line the case fell in terms of high-level violence.18

[39]For all these reasons, I do not consider that s 104 is engaged.

[40]   In addition, even if I had considered that s 104 was engaged, I am satisfied that to impose a minimum period of imprisonment of 17 years of imprisonment would be manifestly unjust. I reach that conclusion because to impose a minimum period of 17 years in circumstances that would otherwise warrant a starting point of 13 years would deny you any credit for the guilty plea you entered and credit for other mitigating circumstances that I shall discuss shortly. As Ms Kincade noted, the Court of Appeal has recently held it would be manifestly unjust to impose a minimum period of imprisonment of 17 years that would represent little credit for mitigating factors and a guilty plea in circumstances where full credit is due.19

[41]   For all these reasons, I conclude that a starting of point of 17 years for your minimum period of imprisonment is not required and I adopt a starting point of 13 years.

Guilty plea

[42]   The Crown and Ms Kincade agree that a discount of 18 months is appropriate for your guilty plea.

[43]   While your guilty plea was entered almost a year after the murder and in circumstances where the Police case was undoubtedly strong, there were justifiable reasons for that delay. Your counsel was awaiting production of the pathologist’s report, which resulted in amendments to the Agreed Statement of Facts. The Covid- 19 lockdown was also a complicating factor.

[44]   Against that background, your guilty plea was not unreasonably delayed and has spared the Matue family the trauma and hurt of a criminal trial. For these reasons,

17     Vea v R [2020] NZCA 68 at [6].

18     Vea v R (CA), above n 17, at [13].

19     Vea v R (CA), above n 17, at [23]. See also R v Peeni, above n 7, at [32].

I agree a discount of 18 months is appropriate. That reduces the minimum period of imprisonment to 11 and a half years before I consider personal mitigating factors.

Personal mitigating factors

[45]   The Crown submits that there are no personal mitigating factors that justify further modification to the minimum period of imprisonment. In oral submissions, Mr Harborow was more equivocal on that point. Ms Kincade, however, submits that further discounts should be considered having regard to the considerations identified in the report on your personal, family, whanau, community and cultural background prepared by Ms Turner under s 27 of the Sentencing Act, the remorse you have expressed for your actions, and your youth.

Your personal circumstances20

[46]   You are a 27-year old man who grew up in Papakura and, for a short time, in Rotorua. You are the second of four children born to your parents, Dianne Te Kawa Simeon and Brett Simeon. You told Ms Turner that you are connected to Ngāpuhi through your maternal grandmother, and to Ngāti Porou through your maternal grandfather. You believe your paternal grandfather is from Omanaia just outside Kaikohe and your paternal grandfather is from Rotorua.

[47]   Your parents both express their love and support for you and say that what happened in May last year was out of character and a terrible mistake. However, your mother acknowledges that she did not provide you the protected and loving environment she enjoyed as a child. She says that because of the way she lived her life, which included a difficult relationship with your father, you were brought up in an environment of fear, drugs, alcohol, brokenness, disappointment, dishonesty, anger and, as she puts it, “everything a child shouldn’t be exposed to.”

[48]   While your mother has since returned to the Pentecostal church in which she and you were raised, you have continued to live your own life, away from home and

20 This information is drawn from the pre-sentence report prepared by the  Department  of  Corrections, the s 27 report prepared by Ms Turner, the letters written by Mr Simeon’s parents, brothers, sister, cousins, uncle and supporters and Mr Simeon’s criminal and traffic history.

away from the church. However, as the letters from your parents, your brothers, your sister, your cousins, your uncle and the pastor of your families’ church attest, you have a strongly supportive family who love you and are ready to stand with you.

[49]   You were very close to your mother’s parents, particularly your grandfather, and to your older brother. As you grew up, you divided your time between your parents, who had an on and off relationship, and your grandparents, who provided you some of the stability that you could not find at your parents’ home. You were deeply affected by the death of your grandfather. You remain close to your grandmother, but as we have heard, her health is deteriorating.

[50]   You did not thrive at school as you grew older. You lasted two years at Rosehill College but by your own admission, you wagged school a lot and got into smoking dope with friends. In year 11, you started an alternative education programme to support children who have become alienated from mainstream education. From around mid-2009, you undertook programmes at Te Wanaga o Aotearoa in Papakura and graduated with a certificate in sports – levels 2 and 3. As a result, you achieved some NCEA levels.

[51]   You got your first job, mowing lawns, when you were 16. That did not last. You then took on a series of temporary jobs. You started an apprenticeship for spray painting cars which lasted about a year until you were fired for absenteeism. You acknowledge that you were given chances but made silly mistakes. Your lack of qualifications and the criminal record you started to accumulate limited your work options. Even so, at the time of arrest, you had a job and had obtained your forklift licence.

[52]   You started smoking cannabis from age 13 and drinking alcohol regularly from around 18. You began to use synthetic cannabis and then methamphetamine from your early 20s. You had been drinking the night you killed Mr Matue and, as the agreed facts recount, you and he were both intoxicated. It appears that you had not taken drugs that night, but you had smoked methamphetamine some nights before.

[53]   You have convictions for an assault in January 2013, two breath alcohol offences in 2013 and 2016, disorderly behaviour likely to cause violence in 2017 and receiving stolen property in 2018, as well as a number of convictions for breach of the community work to which you were sentenced for the other offending. This is all relatively minor.

[54]   As the pre-sentence report writer notes, your killing of Mr Matue “represents a quantum leap” in the seriousness of your offending. Factors contributing to your offending are alcohol, violence, lifestyle and drugs, which you told the report writer were dominating your life at the time of the offending. You say that you should have sought help earlier, in hindsight, for your alcohol and drug issues. The report writer assesses your risk of reoffending as medium given the intermittent nature of your offending, and your risk of harm to others as high, given your present offending and the fact you have not completed any rehabilitation programmes.

[55]   Nonetheless, the pre-sentence report and Ms Turner’s report record that your family was “shocked” when they found out about the serious offending that brings you here today, as the letters they have written to the Court also convey that sense of shock.

[56]   You identify strongly as Māori, and your grandmother used to speak to you in Te Reo but you have limited understanding of the language and of tikanga. Your parents spoke English at home and you did not learn the language, despite starting your formal schooling at a Kohānga Reo in Papakura and despite accompanying your mother to her marae from time to time when you were a child.

[57]   As Ms Turner says, you were raised as an urban Māori in Papakura away from your whenua, away from your marae and away from your traditional tribal base.    Ms Turner says you presented as severely disconnected from Te Ao Māori and have not been meaningfully engaged in cultural activities that would reinforce your place in the world as a tane Māori. She concludes that you are “culturally impoverished”. However, she notes that you do not think your upbringing is the reason for your offending. Ms Turner says in her report that methamphetamine was at the crux of your offending and that, in her view, addiction to drugs and alcohol were the causal nexus of your offending.

Discount for personal factors

[58]   In the light of Ms Turner’s report, the High Court’s decision in Solicitor- General v Heta21 and the Court of Appeal’s decision in Zhang v R,22 Ms Kincade submits that further deductions to the minimum term of imprisonment should be made to take account of your cultural deprivation and your addiction. She notes you were involved in alcohol and drugs from a very young age and says that these were common factors in your early offending as well as in your engagement with Mr Matue.

[59]   With due respect to Ms Turner, I do not accept that there is sufficient evidence to establish that you are addicted to drugs and alcohol in the sense discussed by the Court of Appeal in Zhang, let alone to establish a causal connection between such addiction and your attack on Mr Matue. Ms Turner’s qualifications are not in science or in medicine and I do not attribute significant weight to her opinion that addiction to drugs and alcohol were the causal nexus of your offending.

[60]   I give greater weight to Ms Turner’s opinion regarding your cultural alienation. The objective facts, as well as her report, support the conclusion that, like many Māori, you have suffered systemic Māori deprivation as discussed in Heta.23 Sadly, your sentencing today will add you to the number of Māori who, as Whata J put it in Heta, are “disproportionately represented among the poorest, most illiterate and most criminalised in New Zealand.”²⁴ While you do not attribute your offending to your background, there can be little doubt that a significant factor in your lack of achievement at school, your difficulty in finding and holding down a job, your reliance on drugs and alcohol, and your offending are related to your unsettled upbringing which in turn relates to your parents’ dislocation from their whenua, as your mother has acknowledged.

[61]   The Court of Appeal has acknowledged that the social, economic and cultural disadvantages suffered by Māori frequently contribute to offending, even if it also said that it does not follow that a person is more likely to be at a disadvantage and to offend

21     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

22     Zhang v R [2019] NZCA 507.

23     Heta, above n 21,at [40].

24 At [40].

simply by virtue of his or her Māori heritage.25 As Heta has confirmed, however, evidence of these considerations can inform sentencing when considering factors such as moral culpability and the capacity for rehabilitation.26

[62]   I am satisfied, therefore, that some account of the cultural dislocation and deprivation you have experienced should be taken into account when setting the minimum period of imprisonment.

[63]   The pre-sentence report notes the remorse you have expressed, in particular your wish that you could “take it all back”. You say the same in your letter of 28 May 2020 to the Matue family and in which you say you are truly sorry for the pain you have caused them. Of course, you can’t take it all back, which is why you and they are here today, and why you are going to spend a long period in prison. But I accept that you are genuinely remorseful, and I note that the pre-sentence report writer considers you are “highly motivated” to make amends and undertake rehabilitation programmes in prison. For these reasons, I am satisfied it is appropriate to take account of your remorse when setting the minimum period of imprisonment.

[64]   Lastly, I agree that some account should be taken of your youth. The impulsiveness and lack of forethought in your offending suggest the immaturity and lack of judgment sometimes displayed by young men in particular. However, since your offending took place shortly after you turned 26, you are at the outer limit for consideration for a youth discount.

[65]   Taking all these factors into account, I make a further discount of 9 months to your minimum period of imprisonment. This results in a final minimum period of imprisonment 10 years and nine months.

25     Mika v R [2013] NZCA 648 at [12].

26     Heta, above n 21, at [41].

Sentence

[66]   Mr Simeon, on the charge of murder to which you have entered a guilty plea, you are sentenced to life imprisonment and you are ordered to serve a minimum period of 10 years and nine months’ imprisonment before being eligible to apply for parole.

G J van Bohemen J