R v Simiona HC Wanganui CRI-2010-083-378

[2011] NZHC 73

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-083-378

THE QUEEN

v

JAPHET JOSEPH SIMIONA

Hearing:         7 April 2011

Counsel:         H C Mallalieu for Crown

D M Goodlet and A Brosnahan for Prisoner

Sentence:       7 April 2011

SENTENCING NOTES OF DOBSON J

[1]      You are not being sentenced for murder this morning only because of two circumstances,  neither of  which  can  be  credited  to  you.    Most  importantly,  the determination of your victim to survive, and his will to pull through what could so easily have been fatal injuries.  Secondly, that, happily, medical help was available for him relatively quickly.

[2]      This was a cowardly attack from behind on a lone Police officer, on a stretch of country road early in the morning of 11 December last year. At the time, you were on  bail  for  unrelated  dishonesty  offending,  subject  to  a  24  hour  curfew  at  a residential address in Feilding.  In breach of your bail conditions, you had gone out and found a car in the driveway of a house that had keys in it.  After gathering up your younger accomplice, you went back and pushed the vehicle down the driveway

in which it was parked and drove it away, intending to drive to Turangi.   Your

R V SIMIONA HC WANG CRI-2010-083-378 [7 April 2011]

driving was sufficiently erratic for other road users to report it to the Police, and that resulted in Constable Mellor, who was on traffic patrol on State Highway One, being on the lookout for the car that you were in. You passed him travelling north when he was travelling south.  He turned around, followed you with his red and blue lights flashing. You initially accelerated away but then decided to pull over and stop.  Both you and your accomplice, who was also on bail at the time, gave false details and Constable Mellor walked back to his vehicle to make radio contact for an identity check on both of you.

[3]      Sadly, you had put into the car you stole a machete that you had also stolen in Feilding some time earlier.  When Constable Mellor was facing away from you and near his vehicle, you got out of the stolen car, went up behind him and struck him with  the  machete,  obviously with  real  force.   You  made  contact  with  his  right shoulder and in doing so hit his protective vest, which may have contributed to the machete bouncing out of your hands.  You quickly retrieved the machete from the ground and hit him on the left side of his face with another full swing.  Constable Mellor fell to the ground and you hit him twice more in the head with the machete. Your younger accomplice was with you, and the pair of you, believing that the constable was now dead, returned to the stolen car and began to drive away.

[4]      However, as  you did you looked back and saw your victim move.   You stopped the vehicle and both of you approached him again.  You struck Constable Mellor in the head a further seven times with the machete, and as you did you yelled “are you dead yet?”.  Constable Mellor had been holding his portable Police radio and some at least of your blows appear to have been intended to dislodge that. Eventually he went limp, you were able to snatch the radio and took it with you, throwing it out of the stolen car approximately 400 metres up the road.

[5]      Instead  of driving towards Turangi,  you  decided  to  head  for Napier and turned off State Highway One, apparently in part at least to avoid the Police. However, after some five kilometres you crashed the stolen car.   It rolled down a bank and came to rest in a bushy area. You and your associate then took hay from an old farmhouse in the vicinity where it was being stored, returned to the car, stuffed it

with hay and attempted to set it alight to destroy any evidence that would link the car to you. As you were attempting to do this, you were apprehended by the Police.

[6]      That morning’s activities have resulted in the charges of attempted murder, attempted arson of the vehicle and unlawfully taking it, to which you have entered guilty pleas.  The accomplice with you at the time is still facing proceedings in the Youth Court.

[7]      Mr Simiona, I have viewed the photographs taken of Constable Mellor after he had been operated on to repair the injuries inflicted to his head, and the lesser injuries to his hand and arm.  It is indeed a credit to the human spirit that he survived such a severe and vicious attack.  I have also read the victim impact statement he has completed.  He understands that there were six fractures to his skull, some bleeding on  his  brain,  multiple  facial  fractures  to  his  jaw  and  eye  socket,  and  that  a pronounced  scar  on  his  forehead  will,  at  some  time,  require  corrective  plastic surgery.  He suffered broken teeth as well as wounds to his left arm and hand.  The consequences of the attack also left him with neck injuries that persist with stiffness in movement of his neck.  He is haunted by the sound of the machete and he treats your attack on him as a cowardly ambush.

[8]      I have also read the victim impact statement from the young woman who owned the car that you stole.  She was financially stretched to buy it to an extent that she could not afford insurance.  Because of her personal circumstances, she needs a car and has had to go into debt to replace it.   She is unnerved by the feeling of invasion that your theft of her car represented, and has suffered the incidental loss of other items that were in the car.

Approach on sentence

[9]      Now,  in  considering  an  appropriate  sentence,  I  am  guided  first  by  the Sentencing Act  2002.    Under that Act,  the  Court  is  directed  by the sentencing purposes and principles contained in ss 7 and 8.  Those sections require a sentence that will deter you and others from committing similar offences in the future and that will hold you accountable for your actions.  They also require the Court to impose

the least restrictive outcome that is appropriate in the circumstances and to assist in your ultimate rehabilitation.

[10]     I will focus on the most serious, or what is known as the lead offence.  Here, that is the attempted murder and I must identify a starting point for that offending. To do that, I assess relatively how bad a case of attempted murder this is, and also look at decisions of this Court and the Court of Appeal in similar cases.  After that, I will consider aggravating and mitigating features which are personal to you.

Starting point

[11]     Now, a number of sentencings for attempted murder have referred to the decision of the Court of Appeal in R v Taueki[1] for guidance.[2]    Both counsel have referred to this in your case.   Taueki actually dealt with wounding with intent to cause grievous bodily harm rather than attempted murder, but the Court acknowledged that the guidelines in it can be applied more widely. The maximum penalties for causing grievous bodily harm, and for attempted murder, are the same at 14 years’ imprisonment. Further, Constable Mellor suffered serious injuries, and the aggravating features listed in Taueki assist in assessing the relative seriousness of

your offending in the light of that.

[1] R v Taueki [2005] 3 NZLR 372

[2] See, for example, R v Bolt HC Rotorua CRI-2009-077-1497, 28 October 2010 at [31].

[12]     In Taueki, the Court of Appeal grouped such offending in three bands.  The Court proposed a band 2 that is generally appropriate for offending featuring two or three aggravating features.  Then, band 3 for serious offending with three or more aggravating features, or where the combination of aggravating features is particularly grave.   You will have heard Mr Mallalieu this morning identify what the Crown considers to be ten aggravating features.

[13]     On my own analysis of the Court of Appeal’s identification of aggravating

features, I identify the following:

(a)      First, extreme violence.  You attacked the constable several times and not only did you leave the constable at the scene to die, but when you realised that he was not dead the first time, you returned for a second attack in an endeavour to ensure that he was.

(b)Secondly, serious injury.   They were certainly that, and they could easily have been fatal.

(c)      Thirdly, the use of weapons.   You used a machete.   That can be a deadly weapon in the hands of fit young men.

(d)      Fourth, attacking the head.  Not only did you use a weapon, you used

that weapon to attack, almost exclusively, Constable Mellor’s head.

(e)      Fifth, the number of offenders.   This was not a gang attack, and I accept   for   the   purposes   of   my   sentencing   that   you   accept responsibility for the attack, but there were two of you confronting a lone victim. And that is an aggravating feature.

(f)      Sixth, that this was an attack on a public official.  Your offending was against a Police officer in the execution of his duty.

[14]     Whether  one  stops  at  six  or  goes  on  and  identifies  the  remainder  that Mr Mallalieu identified at ten, it certainly places your offending in Taueki band 3. The Court of Appeal provided a range of between nine and 14 years’ imprisonment for offending which falls within that band.   In determining where in band 3 your offending should fall, I note that in Taueki the Court of Appeal offered the following

example (and it is the same one that Ms Goodlet acknowledged):[3]

(c)       Serious attack on police: Where an assault on a police officer by multiple attackers with weapons leads to a life-threatening injury, a starting point at or near the 14-year maximum may be called for.

[3] At [41].

[15]     In determining more precisely where in the band between nine and 14 years the starting point should be, I note that the Crown submits that this is so serious that

the maximum of 14 years is warranted.  Ms Goodlet urges 12 years and six months, on the basis that we would add an extra six months because the offending was whilst you were on bail.  I agree that the fact that this offending was committed whilst you were on bail for other offending is an aggravating factor.  I am satisfied that there are no mitigating features with regard to the offending itself.

[16]     I have looked at a number of other cases to reflect comparable sentences, and these include:

(a)      R v Murray.   There, the appellant had been convicted following a defended trial on two counts of attempted murder.[4]    In that case, the Police received a report of an abandoned car.  Two constables went to investigate.  The car had been booby-trapped.  If the driver’s door had been opened, the device would have ignited the fuel in the car.  The Court of Appeal  upheld  a sentence of 12  years’ imprisonment on appeal.  The Court considered that an attempted attack on the lives of Police was an aggravating feature, along with an indifference as to

[4] R v Murray (1997) 14 CRNZ 524.

who may be killed and the fact that the attempt came very close to being accomplished.

(b)Then in a different context is R v Phillips.  That involved prisoners who were convicted following a defended trial on one count of attempted  murder.[5]      The  offenders  attacked  a  fellow  inmate  in  a prison.  One grabbed the victim and put him in a headlock.  The other inflicted two deep wounds to the neck.  Fortunately for the victim, it did not sever the major vein and artery in the neck.  The aggravating

features of that offending were pre-meditation, the serious injury inflicted,  the  use  of  a  weapon  and  the  fact  that  there  were  two involved, the degree of vulnerability arising from the fact that the victim could not escape as he was a prison inmate and that it occurred in a prison environment.  Considering those factors, a starting point of

10 years’ imprisonment was adopted.

[5] R v Phillips HC Napier CRI-2009-020-4936, 26 November 2010.

[17]     On your behalf, Ms Goodlet invites comparison with the case of R v Bolt.[6]

That involved on-going aggravation between the defendant, who was with a group in the vehicle that he was driving, and another group.  After a couple of chases of the group including the victim, he was caught in a fence, at which time the defendant drove his vehicle into the fence and the victim fell under the front wheels of the car. The defendant  then jumped out  and  struck  the victim  in  the head  with  a claw hammer, inflicting serious injuries including a depressed fractured skull, broken ribs and a punctured lung.  There were gang overtones to the offending.  The sentencing Judge in that case adopted a starting point of 10 years and six months.

[6] R v Bolt HC Rotorua CRI-2009-007-1497, 29 October 2010.

[18]     Now, the Crown, in Mr Mallalieu’s submissions, has invited analogy with a number of cases from as far back as 1988 down to present, more recent cases, involving sentences by the High Court and in some cases on appeal by the Court of Appeal, ranging from eight years to 12 years.[7]

[7] R v Allen and Gannings CA4 & 7/88, 23 June 1988, R v Steeman CA175/03, 5 June 2003,

R v Watkins CA326/86, 15 April 1987, R v Brown [2002] 3 NZLR 670.

[19]     Of those cases, only Murray, the first I have mentioned, involved attempted murder of a Police officer, and there, no injuries were actually inflicted.  Taking into account the aggravating features of this offending and all the other cases I have acknowledged, and considering the requirement that offending against members of the Police requires a strong level of deterrence, I consider Ms Goodlet’s approach to a starting point of 13 years’ imprisonment to be appropriate.  That is, 12 years six months plus a six month uplift to reflect the aggravating feature personal to you, namely that you committed the crimes whilst on bail.   So I fix a starting point of

13 years.

[20]     I now turn to consider all the remaining aspects that are individual to you. The greatest weight can be given to your early guilty plea, and also to your age.  A number  of  considerations  arise  on  that  second  mitigating  factor,  and  I  will  go

through them shortly.

[21]     Your guilty pleas here are after the Supreme Court’s decision in Hessell v R,[8] which both counsel have referred to,  so that the guideline of up to  25 per cent discount for an early guilty plea is appropriate.   In this case, I am comfortable applying that 25 per cent.   Your plea was made early and  was  accompanied by remorse.

[8] Hessell v R [2010] NZSC 135.

[22]     At least in cases of serious violent offending, there is no recognition that you will automatically be treated more leniently on account of your youth.  Ms Goodlet submitted that the three month discount for a young offender in Bolt was insufficient, and cited the Court of Appeal’s decision in R v Rapira & ors[9]  where there were discounts of between one and close to three years given on account of the relative youth of young offenders involved in a very violent and unprovoked attack on a delivery man that resulted in his death.

[9] R v Rapira & ors CA318/02, 5 September 2003.

[23]     Reasons why I am prepared to make a relatively significant discount on account of your age include the positive aspects in the pre-sentence report I have read about you.  That describes that you were physically abused by your father as a child, and that you are a talented young man, particularly in art and music.   The report writer found you to be extremely courteous and polite and to be genuinely remorseful in a way which I sense is related to your age at 18.    The report writer suggests that having said to your younger accomplice that you would attack the constable if you needed to in order to get away, you felt obliged to go through with it because you are a man of your word.  If that was so, it was completely misguided of you,  but  it  also  raises  the  prospect  that  you  are  not  inherently,  or  at  least  not incurably, inclined to violence.  Overall, the report gives greater cause for optimism about your rehabilitation than is often the case with 18 year old offenders before the Courts for serious violence.

[24]     I also acknowledge, as is apparent from that report and from their presence in Court today, the support you have from your family.  And I can only be hopeful that that will be sustained through your prison term and in your rehabilitation.   I also

acknowledge that you have pursued a restorative justice initiative, but it is frankly

understandable that Constable Mellor is so far unwilling, given that this cowardly and brutal attack remains very raw for him.  Hopefully that may occur after a period of time.

[25]     Being careful not to double-count the mitigating factors in your favour, it is appropriate to reflect these points under the heading of the circumstances of your youth, and this can also reflect the genuine remorse you have shown, in reducing the sentence by a further 18 months.

[26]     Now, I must also consider your other offending.  You took a vehicle, crashed it and then attempted to set it alight.  That has caused significant financial harm to its owner and has caused a good deal of distress for her.  The Crown acknowledges that it would be conventional to deal with these less serious convictions by cumulative sentences – that is ones served after the longer one – but that in the circumstances of the sentencing proposition that you present, concurrent sentences are appropriate. That means that I order shorter terms of imprisonment and you serve them at the same time.  I consider that is appropriate, given that I then have to stand back under the totality principle in the Sentencing Act and evaluate the impact of the total sentence relative to the total offending.

[27]     Here, I sentence you to nine months’ imprisonment on the attempted arson, and six months’ imprisonment on unlawfully taking the motor vehicle.  Both of those sentences will be served concurrently, ie at the same time, as the sentence for attempted murder.

[28]     Standing  back  then,  from  the  starting  point  of  13  years,  I  reduce  it  by

25 per cent on account of your early guilty plea, getting to nine years and  nine months.  I then deduct a further 18 months for the other mitigating factors, making a sentence on the attempted murder of eight years and three months.  I acknowledge that is longer than the range of between seven and a half and eight years as urged by Ms Goodlet, but as an end point  I cannot  get  lower than eight  years and three months.

[29]     The last factor on this assessment is that you are currently serving a sentence of 17 months’ imprisonment.  The ordinary course would be to impose this sentence cumulatively upon that, so the time to be served for the offending you are being sentenced on today would not start to run until the time you would have otherwise actually spent in respect of your 17 month sentence comes to an end.  And you will have heard Ms Goodlet’s arguments to me to deal with it differently.  You will have to serve half of the 17 months.  I direct that today’s sentence is to commence on the day you would have been released from the earlier sentence, ie after one half of the

17 months.

[30]     In standing back to take the totality principle into account, and considering all these factors,  I am satisfied that a sentence of eight  years and  three months is sufficient to reflect the gravity of the totality of your offending, and that is the final sentence I impose on you today.

[31]     Although the Police sought a reparation order of $1,500 in relation to the car you took, Mr Mallalieu has realistically conceded there is little prospect of you being able to meet such an order, and I have to bear in mind that a sentence of reparation must be reasonable and be able to be paid back over a reasonable period of time.[10]   I intend no disrespect to the trauma this has caused to the owner of the car, but I am not prepared to order reparation where I am satisfied there is no realistic prospect of you paying it back over a reasonable period of time.

Minimum period of imprisonment

[10] Simmonds v Police (1990) 6 CRNZ 8 (HC).

[32]     The next aspect of my sentencing considerations is whether it is appropriate to impose a minimum period of imprisonment.   That is sought by the Crown, but Ms Goodlet has argued in reliance on your youth, your sincere remorse and your very promising prospects for rehabilitation, that one is either not warranted or should not be set at more than 40 per cent of the total sentence, when Mr Mallalieu has

submitted it should be 50 per cent.

[33]     Now, s 86 of the Sentencing Act enables me to impose a minimum period of imprisonment that is longer than the one third that you would be likely to serve under the normal terms of the Parole Act 2002, where the Court is satisfied that that “normal” length of one third of a notional sentence, if it was all that you served, would be insufficient to hold you accountable, or to denounce the conduct in which you were involved or to deter you and others, or indeed to protect the community

from  you.   The Crown  submissions cited a case of R v Brown,[11]  which was a

[11] R v Brown CA238/02, 25 September 2002.

Solicitor-General’s  appeal  from  a  sentencing  Judge’s  decision  not  to  impose  a

minimum period of imprisonment. The Court of Appeal observed in that case that:[12]

...s86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk.  It enables the courts to give a degree of reality to the sentence and the outcome.

[12] At [28].

[34]     In light of all that I have said about the seriousness of your offending, I am most concerned that serving the ordinary minimum of one third of the period of eight years and three months would not be enough to reflect the appropriate community concern for punishment, deterrence and a denouncing of the offending.

[35]     As  against  that,  your relative  youth  and  unusually positive prospects  for rehabilitation are factors against the discouraging impact that a minimum period beyond one third might have on you.  I have given you appropriate credit for those factors in arriving at the sentence.  Addressing the separate consideration under s 86, I have, with some considerable reluctance, come to the view that inadequate signals would follow from an acknowledgement that you could be released after one third, namely two years and nine months.

[36]     I accordingly impose a minimum period of imprisonment at 50 per cent of the sentence of eight years and three months that I have imposed.

Three strikes

[37]     Now, that brings me to  the final part of the sentencing.   The charge of attempted  murder  is  a  serious  violent  offence  as  classified  under  s 86A of  the Sentencing Act.  As you were 18 years old at the time of the offending, even if only by one month, you qualify under what has become known as the three strikes rule.  I am therefore required to give you a warning of the consequences of another serious violence conviction.   I have also directed the Registry to hand to you a written warning before you leave Court today saying the same thing.

[38]     The first consequence is that if you are convicted of any one or more serious violent offences, other than murder, which are committed after I have given you this warning and a Judge imposes a sentence of imprisonment, then you must serve that sentence without parole or early release.

[39]     The second  is  that  if  you  are convicted of murder,  committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  And in that event, the Judge must sentence you to a minimum term of imprisonment.

[40]     As I have said, you will get the terms of those warnings in writing. [41]        You may stand down.

Dobson J

NB:  Shortly after sentencing concluded, matters that required reconsideration were drawn to my attention and dealt with in the terms recorded in my Minute of 7 April

2011.

Solicitors:

Crown Solicitor, Wanganui

D M Goodlet, Wanganui for Prisoner