R v Solomon

[2017] NZHC 3057

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-092-012807 [2017] NZHC 3057

THE QUEEN

v

DENIS ROBERT HENRY SOLOMON VINCENT MANA GEORGE

Hearing:	8 December 2017
Appearances:	N Walker and Y Yelavich for the Crown S Tait and J Hudson for Mr Solomon A Simperingham for Mr George
Sentence:	8 December 2017

SENTENCING NOTES OF HINTON J

Counsel/Solicitors:

Kayes Fletcher Walker, Manukau

Shane Tait, Barrister, Manukau

Woodward Chrisp, Gisborne

R v SOLOMON AND GEORGE [2017] NZHC 3057 [8 December 2017]

Introduction

[1]      Mr Solomon and Mr George, you may remain seated until I ask you to stand.

[2]      You have both been found guilty of murdering Mr Clayton Ratima. You now appear for sentence.

[3]      The penalty for murder in these circumstances is life imprisonment.  What remains to be determined today is the minimum period of imprisonment that you must serve before you are eligible for parole.

[4]      Before I proceed, I would like to acknowledge the presence of members of the victim’s whānau and his friends here today.  There is nothing I can say or do that can change what happened when Mr Ratima was killed, but I do extend to you the deepest sympathy of the Court.

Facts

[5]      The victim, Mr Ratima, was 24 years old at the time of his death.  He was a prospect of the Tribesmen gang.

[6]      Both of you were patched members of the Tribesmen gang, and had previous interactions with Mr Ratima through your involvement in the gang.

[7]      On the night of 20 February 2016, both of you had attended the Ragamuffin concert in Auckland, before going to a night club. You had both been drinking solidly. At about 5.00 am on Sunday 21 February 2016, you went to the Tribesmen pad in Otara, along with two associates.

[8]      Mr Ratima was acting as a gate warden at the Tribesmen gang “pad”.  One of his duties was to let gang members onto the property through the front gate.

[9]      What  happened  on  arrival  was  not  in  evidence,  but  shortly  after,  you,

Mr George, woke up one of your associates who was asleep when you arrived.  You said that Mr Ratima wanted to fight him.  The associate was highly intoxicated, so

much so that he could hardly stand, and there followed a messy scrap between him and Mr Ratima, with neither really connecting with the other.  You both encouraged the fight.  The associate decided to walk away, saying, “I did not come here for this shit.” You were both very displeased with your associate walking away and swore and called him a fag. As your associate walked away, you both launched yourselves at Mr Ratima.

[10]     You both then proceeded to attack Mr Ratima, punching him in the head and upper body, or one of you did and the other assisted.  It appears Mr Ratima covered his head and tried to protect himself.  He did not try to fight back.  It is a Tribesmen rule that gang prospects do not fight back when members attack them.  After your attack, you walked away, leaving Mr Ratima lying unconscious on the ground by the fence of the property. You both then left the property.  Neither of you made an effort to assist Mr Ratima or seek medical attention for him at any stage.  Mr Ratima lay in the backyard for a number of hours, and was taken to hospital hours later, arriving at the hospital at around 1.20 pm that day.

[11]     The consensus among medical professionals was that, as a result of what appeared to be a serious brain injury, Mr Ratima would not survive.  Mr Ratima was admitted to intensive care, and was confirmed brain dead at 2.00 pm on Monday

22 February 2016, the day after he was attacked.  The ventilator was switched off on

Wednesday 24 February 2016.

[12]     Dr Vertes, a pathologist who gave evidence at trial, stated that in her opinion, Mr Ratima’s death was caused by multiple blunt force head and neck injuries.  The injuries were consistent with approximately eight discrete blows delivered by fists or kicking.  The injuries caused Mr Ratima’s brain to become swollen, which pushed down into the area which connects the brain to the spinal cord, and ultimately led to his death.  There were additional injuries to his torso and hands.  The injuries to the back of his hands were consistent with defensive-type posturing. Overall, the medical evidence identified approximately 22 discrete blows to Mr Ratima’s body.

Statements from Mr Ratima’s family

[13]     Your actions have not only led to Mr Ratima’s death, but as a result of that death have also caused life-long harm to a number of others.

[14]     Ms  Janie-Lee Ratima and  Ms  Noreen Walker  did  not  file  victim  impact statements, but they gave relevant evidence at trial. I consider it helpful to summarise parts of their evidence here, to describe their view of Mr Ratima.

[15]     Ms Janie-Lee Ratima is Mr Ratima’s sister. She told the Court that Mr Ratima was humble.  He was a good person to everyone and had a bubbly personality.  Ms Walker, Mr Ratima’s cousin, told the Court that she was 11 years older than Mr Ratima, and he was like her son when he was growing up.  She too described Mr Ratima as a humble person.

[16]     Two of Mr Ratima’s aunts, Ms Carol Ruka and Ms Joan Ann Mitchell, have provided victim impact statements. They provide insight into the additional harm you have caused.  I have read them carefully.

[17]     Both women have said that Mr Ratima was gentle, humble, loving and caring. Ms Mitchell said Clayton wouldn't even hurt a fly and specifically spoke of his kindness in respect of his care of his mother before she died.

[18]     Ms Mitchell also referred to the harm that Mr Ratima’s father is experiencing; that he is not communicating; and his relationship with his other children is suffering. She also referred to Mr Ratima’s massive whānau on both his mother’s and his father’s side, who are all in shock, wishing he was still with them.

[19]     Ms Ruka said that Mr Ratima did not deserve to die like he did, which it goes without saying is true.   Mr Ratima had done nothing other than to be a prospect. He died at the very hands of the gang he was seeking to join.  Hopefully if nothing else is served, his death will dissuade others from doing so.

[20]     Both Ms Mitchell and Ms Ruka say they believe justice has been served as a result of the jury’s verdict against you both.

[21]     It is clear from all four relatives of Mr Ratima, that you killed a humble, kind person. The suffering you have both caused is clear from Ms Mitchell and Ms Ruka’s statements. A small consolation for them is the sense of justice they describe from the jury’s verdict, which appears to have provided a measure of comfort, and is the first of many steps they have no choice but to make, moving forward.

Personal circumstances

Mr Solomon

[22]     Mr Solomon, I turn to address your personal circumstances.

[23]     You are 33 years old.   You identify as Maori of both Ngāpuhi and Tainui descent, and you are the eldest of eight siblings. You were raised by your grandmother in Otara.   You  told  your pre-sentence report-writer that  you  are in  a long-term relationship with your current partner, and you have a five-year-old son together. Your partner continues to support you, and you are in regular contact.

[24]     You left school at age 16 and were employed as a storeman for Rio Beverages in  South Auckland.   You  were  made  redundant,  and  your  employment  became sporadic.  You relied on a benefit administered by Work and Income New Zealand (WINZ).  Prior to being remanded in custody, you were unemployed.

[25]     As referred to earlier, you are a patched member of the Tribesmen, and have been for the past five years.   The report-writer considers that your pro-criminal associations and attitude, played a major role in the events that led to Mr Ratima’s murder.

[26]     You reported that you consume alcohol and illicit drugs on a weekly basis, but denied that your drug use was an issue.  You were more concerned with your alcohol use. The report-writer considered you have minimal insight into how your illicit drug use and other factors may have impacted on your decision-making with regards to the events leading up to and after Mr Ratima’s death.

[27]     The report-writer considered that, after discussing Mr Ratima’s death with you, you offered very little insight regarding your responsibility for his death. You tried to shift blame onto an unnamed associate, and were more concerned with your own predicament rather than the horrific way in which Mr Ratima, someone you said was your friend, passed away. The report-writer did not consider you expressed remorse.

[28]     The factors related to your offending have been identified as being your propensity for violence, your attitude, gang affiliations, and problematic use of alcohol and illicit drugs.  The pre-sentence report-writer says you also have a poor history of complying with  community-based sentences  and pose a very high  likelihood of reoffending and harm to others in the short term.

[29]     I have reviewed your criminal history.  You have 13 previous convictions, but none for violent offending, and the most recent was in 2014.   Your previous convictions include convictions for driving-related offending and drug-related offending.

Mr George

[30]     Mr George, I now turn to consider your personal circumstances.

[31]     You are 33 years old and of Cook Island descent.  You were born in Auckland and brought up in Otara and surrounding districts.  Your early offending has been attributed to your association with the Killer Beez gang, but your involvement in gang life appears to have been intermittent.  The report-writer says for some periods you have been almost free of gang association.

[32]     Prior to your remand in custody, you were living in a long-term relationship with your partner, the mother of your two younger children.  You have an older child from a previous relationship.  Your partner reports that you are a loving family man, and there is no violence in your relationship.

[33]     You expressed deep sadness at the death of Mr Ratima, and said that you regarded Mr Ratima as a brother. You told the report-writer you have gone over events

in your mind repeatedly, and you now deeply regret not doing more to stop the fighting.  The report-writer considered that, while you pleaded not guilty, you were genuinely remorseful.

[34]     Your risk of reoffending was assessed as low to medium, based primarily on your ongoing association with criminal organisations.  You reported that your use of alcohol and drugs is low, which the report-writer noted appeared to be supported by an absence of repeated convictions for substance abuse-related offending.

[35]     You have 15 previous convictions and 27 Youth Court notations.  Of note is your conviction from 2011 where you were convicted of common assault.   Your criminal history otherwise primarily consists of convictions relating to breach of court orders and alcohol, drugs and driving-related offending.

Submissions

[36]     I have received full sentencing memoranda from Ms Walker, on behalf of the

Crown, Mr Tait, on behalf of Mr Solomon and Mr Simperingham, on behalf of

Mr George.

[37]     Ms Walker, for the Crown, submits that a life sentence of imprisonment is appropriate, and that a starting point minimum period of 11 to 12 years’ imprisonment should be imposed, with no uplift for personal aggravating features of either of you, or any discount for personal mitigating features.   Ms Walker submits there are a number of aggravating features of your offending which justify a minimum period of imprisonment of between 11 to 12 years.

[38]     Both Mr Tait and Mr Simperingham accept a sentence of life imprisonment is appropriate.

[39]     Mr Tait, for you, Mr Solomon, submits that your whānau is a mitigating factor, because you will be unable to play an active role in the development of your son when incarcerated.   On the basis of the nature of the offending and this factor, Mr Tait

submits that a minimum period of 10 years’ imprisonment is sufficient to recognise the severity of your offending.

[40]     Mr Simperingham, for Mr George, refers to the remorse that you, Mr George, expressed during your interview with the pre-sentence report-writer, and submits the minimum period of imprisonment should be 10 years for you as well.

Principles and purposes of sentencing

[41]     The process of sentencing requires me to have regard to ss 7 and 8 of the Sentencing Act 2002, which set out the principles and purposes of sentencing.  I now turn to address them.

[42]     In respect of the purposes of sentencing, I have had particular regard to the need to hold you accountable for the harm you have done to the victim (and the community) by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to denounce the conduct in which you were involved; and to deter you and others from committing the same or similar offences. I must also consider the need to protect the community.

[43]     In respect of the principles of sentencing, it is particularly relevant to take into account the gravity of your offending, including your level of culpability, and the general need to have sentencing levels that are consistent with similar offenders, committing similar offences.  I must also consider the effect on the victims of your offending, particularly the effect on Mr Ratima’s family.

Assessment

[44]     Because both of you have been jointly convicted of murder, I approach your sentencing together.  If there are aggravating or mitigating factors personal to one or the other of you, I will deal with them separately at the relevant point.

[45]     Under s 102 of the Sentencing Act, the presumption for a sentence of murder is life imprisonment, unless that is considered manifestly unjust. As I indicated at the beginning  of  this  sentencing,  and  as  your  counsel  accept,  a  sentence  of  life

imprisonment is appropriate, and that is the sentence I am imposing on you both. What remains to be determined is the minimum period of imprisonment you must serve before you are eligible for parole.

[46]     A minimum period of imprisonment is the minimum period of time for which you must remain in prison before you can apply for parole.  Whether you are in fact released after that minimum period, is still a decision for the Parole Board, which must determine at the relevant time whether you remain a risk to the community.  There is no guarantee that you will be granted parole after the minimum period.  If and when you are, you will be subject to parole conditions for the rest of your life.  If you were to breach those conditions or reoffend, you would return to prison and continue to serve a sentence of life imprisonment.

[47]   Section 103 of the Sentencing Act provides that a minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment the Court considers necessary to satisfy all or any of the following purposes:

(a)       holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)       deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[48]     The focus of the enquiry in fixing a minimum term is whether a 10-year minimum period would be adequate, and if not, how much more than the minimum

10 years is required in order to achieve the purposes of s 103.1

[49]     In special circumstances, which are described under s 104, a minimum period of at least 17 years must be imposed, unless it would be manifestly unjust to do so. The Crown does not submit that any of the qualifying circumstances referred to under

s 104 are applicable, and I agree. The assessment therefore remains under s 103.

1      R v Howse [2003] 3 NZLR 767 (CA). See also R v Schofield [2015] NZHC 2109 at [28].

Starting point

[50]     I now turn to assess what the appropriate minimum term of imprisonment is.

[51]     As I said earlier, both of your counsel say the minimum term of imprisonment should be 10 years.  Ms Walker says it should be 11 to 12 years.

[52]     I first consider the circumstances of your offending. I note two factors that are inherent in the offence of murder.   First, the offending involved violence which resulted in extensive, and ultimately fatal, injuries to Mr Ratima’s face and neck and further injuries to his torso and extremities. Mr Ratima’s injuries to his head led to his brain becoming swollen, compressing his brain stem and leading to his death. Second, and also inherent in the offence of murder, is the extent of the harm caused by your offending.  Mr Ratima’s death is a big loss to his whānau and friends.

[53]     In terms of other aggravating features of your offending, there were two of you attacking  Mr  Ratima,  and  in  circumstances  where  Mr  Ratima  was  vulnerable. I consider Mr Ratima’s vulnerability to be the worst feature here.  His vulnerability was by virtue of his position as a gang prospect, being attacked by patched gang members. He was not allowed to fight back when he was assaulted by the two of you, a fact which would have been known to you both.  This was violence of the most cowardly sort.

[54]     Both of you also failed to assist Mr Ratima in receiving medical treatment for his injuries. You left Mr Ratima lying on the ground and it was seven hours later that he was taken to hospital by other gang members.

[55]     I note the Crown’s submission that there was premeditation on the basis that there was, as Ms Walker put it, “a moderate degree of forethought” in your offending. I do not consider there is sufficient evidence that your assault was premeditated in that manner.

[56]     The Crown refers to five cases that it considers are comparable, and which it submits support setting the minimum term of imprisonment between 11 and 12 years.2

I have read each of the cases the Crown referred me to. As Mr Tait submits, I consider that the defendants’ exercise of violence against the victims in each of the cases referred to is in some way more serious than the present circumstances, whether it be because of the prolonged nature of the attack,3 added together with the vulnerability of the victim,4 or because of how the violence was carried out.  For example, in R v Sullivan, one of the defendants was described as telling another that he had put in two big stomps on the victim’s face while he was lying on the ground gurgling blood, to put him out of his misery.5  In two others, the offending was sufficiently serious that s

104 was engaged, which is not the case here.6

[57]     All but one of the cases either set an initial minimum period of imprisonment of 11 to 12 years, or the final minimum period of imprisonment was within that range, after taking into account mitigating and aggravating factors.7    I consider that these cases support the view that a starting point of less than 11 years is appropriate here, given the offending in those cases was more serious.

[58]     I  have  also  read  the  two  cases  Mr  Simperingham  referred  to  in  his submissions.8    I consider one, R v Aiono, is relevant.9    The victim fought with the defendant until the victim fell unconscious.   From there, the defendant punched, kicked and stomped on his head. The assault went on for five minutes. The minimum period of imprisonment was set at 10 years in that case.  On the one hand, the victim in Aiono threw the first punch and was able to engage in the fight until he fell

unconscious.   However, while there was a high level of violence here, there is no

2      R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October 2009; R v Sullivan HC Wellington CRI-2009-485-86, 10 February 2010; R v Rangiwhaiao [2012] NZHC 1751; R v Churchis [2014] NZHC 2257; R v Lavemai [2014] NZHC 797.

3      R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October 2009; R v Sullivan HC Wellington

CRI-2009-485-86, 10 February 2010; R v Rangiwhaiao [2012] NZHC 1751.

4      R v Churchis [2014] NZHC 2257.

5      R v Sullivan HC Wellington CRI-2009-485-86, 10 February 2010 at [18].

6      R v Churchis [2014] NZHC 2257; R v Lavemai [2014] NZHC 797.

7      The exception was R v Lavemai, where a minimum period of imprisonment of 17 years was imposed because s 104 of the Sentencing Act was engaged.

8      R v Kahia [2015] NZHC 344; R v Aiono [2012] NZHC 1752.

9      R v Aiono [2012] NZHC 1752.

evidence that your attack continued after Mr Ratima became unconscious, or that it was prolonged.  In fact, it would seem not.

[59]     It is also relevant that you have not been convicted of directly intending to kill, but rather that between you, you assaulted Mr Ratima in a manner that you must have known carried a real and substantial risk you would kill him.

Uplift

[60]     The Crown does not consider that the previous conviction history of either of you merits an uplift for previous convictions.  I agree. There are no other factors that would justify an uplift.

Discount

[61]     Mr George, your counsel submits that your remorse merits a discount.  I note that the two pre-sentence reports in respect of both you and Mr Solomon were written by different probation officers. This is material because your report-writer considered that you are remorseful, whereas Mr Solomon was assessed as having minimal insight. However, both of you continue to deny your role in the offending.  I accept you are remorseful, Mr George, but I do not consider that you should be treated differently to Mr Solomon, insofar as receiving a discount for remorse. Remorse for that purpose is sorrow for what you have done, not sorrow for the death.

[62]     Mr Solomon, your counsel submits that your inability to take an active role in your son’s life while incarcerated is a mitigating factor.   That is not a factor that supports a discount.  Unfortunately, many offenders who are imprisoned are parents, or had a significant role in the upbringing of a child.  The loss of maintaining that active role while imprisoned is a very sad, but inevitable consequence of your actions, and you must be held accountable for those actions.

[63]     On that basis, I do not consider that a discount would be appropriate for either of you.  There are no other mitigating factors personal to either of you that would justify a discount.

[64]     As I have noted, the “minimum period of imprisonment” starting point is

10 years, and I have had to assess whether an additional period is required to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.   Having considered the aggravating features of your offending and reviewed the case law counsel have referred me to, I have determined, despite not allowing any discounts, that an initial period of 10 years’ imprisonment is sufficient.

Result

[65]     Mr Solomon and Mr George, please stand.  I will now impose your sentences.

[66]     Mr  Solomon,  for  the  murder  of  Clayton  Ratima,  you  are  sentenced  to life imprisonment. You are to serve a minimum of 10 years’ imprisonment, before you are eligible for parole.

[67]     Mr George, for the murder of Clayton Ratima, you are also sentenced to life imprisonment, and will serve a minimum of 10 years’ imprisonment, before you are eligible for parole.

[68]     Mr Solomon and Mr George, stand down please.

------------------------------------------- Hinton  J