R v Te Poono
[2017] NZHC 566
•27 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-054-2886 [2017] NZHC 566
THE QUEEN
v
HEMI TE POONO
Hearing: 27 March 2017 Counsel:
D Davies and J Mildenhall for Crown
I M Antunovic for DefendantSentence:
27 March 2017
SENTENCING NOTES OF COLLINS J
[1] Mr Te Poono, this morning I am sentencing you in relation to 10 charges.
[2] Four of the charges stemmed from offending committed in Palmerston North on 27 August 2015. You pleaded guilty to those charges on 26 October 2016, namely:
(1) attempted burglary of the Manawatu Standard building;1
(2) attempted burglary of the FMG building;2
(3) unlawful possession of a firearm;3 and
1 Crimes Act 1961, s 231(1)(a) and s 311. Maximum penalty is five years’ imprisonment.
2 Section 231(1)(a) and s 311.
3 Arms Act 1983, s 45(1). maximum penalty is four years’ imprisonment or a $5,000 fine.
R v TE POONO [2017] NZHC 566 [27 March 2017]
[3] Four charges arose from offending committed in September in the Manawatu prison. You pleaded guilty on 1 November 2016 to those charges, namely:
(1) assault with a weapon on 25 September;5 and
(2) three charges of injuring with intent to cause grievous bodily harm on
28 September.6
[4] The two remaining charges of wounding with intent to cause grievous bodily harm7 arose from offending that occurred in the Rimutaka Prison on
19 October 2015 and 12 November 2015. You pleaded guilty to those charges on
18 October 2016.
[5] You were acquitted on a charge of murder by a jury in a trial that occurred between 7 November and 24 November 2016 in the Wellington High Court.
[6] I have carefully considered whether preventive detention is appropriate in your circumstances but I have decided to impose a finite period of imprisonment. In sentencing I shall:
(1) first explain your offending;
(2) then review your personal circumstances; (3) I’ll explain your previous offending;
(4) then I’ll outline the pre-sentence reports that are before me;
(5)then I’ll explain why I am not imposing a sentence of preventive detention;
4 Summary Offences Act 1981, s 29(1)(b). Maximum penalty is three months’ imprisonment.
5 Crimes Act 1961, s 202C. Maximum penalty is five years’ imprisonment.
6 Crimes Act 1961, s 189(1). Maximum penalty is 10 years’ imprisonment.
7 Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
(7) then I’ll examine adjustments to the starting point; and
(8) then explain the totality adjustment and your final sentence.
Your offending
Palmerston North offending
27 August 2015 – two charges of burglary and possession of a firearm
[7] At about 4.40 am on the 27th of August you entered Jersey Lane, an alley in central Palmerston North. You were armed with a sawn-off shotgun. You were also in possession of shotgun ammunition and a night vision device.
[8] You climbed up the fire escape at the rear of the Manawatu Standard building. The staircase was enclosed by secure steel gates between floors, steel barriers, barbed wire and electric fencing. You managed to climb around the gates and fencing and accessed the secured areas. You then attempted to force entry into the offices on the second floor. Your attempts to gain entry resulted in you breaking the handle of the security door.
[9] You then climbed onto the roof of the building and gained entry to the third floor roof of the neighbouring FMG building. You made your way around the landing and attempted to gain entry to the offices at several points. You smashed a window but your way inside was blocked by a cabinet. You also tried to access an air-conditioning unit by removing a panel. Around this time, staff began arriving at the offices to start work for the day. You were unsuccessful in gaining entry to the offices inside the building and so made your way back to the other building and down the staircase. You left your night vision device and shotgun ammunition on the roof of the third floor at the back of the FMG building. Several people inside the building saw you on the staircase and you were seen in possession of the shotgun. You disposed of the shotgun in a skip bin at the bottom of the staircase.
[10] At about 7.14 am you left Fitzherbert Street and headed towards Ranfurly Street. The Police had been contacted at this point and you were subsequently identified and the scene searched. On examination the shotgun was found to be loaded and cocked ready to be fired. Shotgun ammunition was also located at your address.
27 August 2015 – unlawfully in an enclosed yard
[11] That afternoon you went to the yard of a property at Ada Street in Palmerston North. You jumped the boundary fence between this property and a property on Ranfurly Street on at least two occasions. You picked up a garden spade that was on the floor of the garden and walked around into the garage of the same property, which was open. The complainant observed you in the garage and called the Police.
Manawatu Prison offending
25 September 2015 – assault with a weapon
[12] At about 10.35 am on the 25th of September 2015, you and the victim were among a group of prisoners in an exercise yard. The victim was talking on a phone located in the corner of the yard. Without warning or provocation, you crossed the yard and approached the victim from behind. The victim did not know you. You removed a sharp pencil from your clothing and stabbed the victim multiple times about the head. As the victim backed away, raising his hands to protect himself, you continued to advance upon the victim, stabbing him with the pencil.
[13] The victim suffered a fractured cheek bone and multiple cuts to the front, rear and left side of his head.
28 September 2015 – three charges of injuring with intent to cause grievous bodily harm
[14] At about 4.30 pm on Monday, 28 September you were at the Manawatu Prison. The three victims, who are Corrections officers, were uplifting meal trays from various prisoners. As they approached your cell they unlocked your door and
you walked from your cell and placed your meal tray on the trolley. At the time you had concealed a previously sharpened shank underneath the meal tray. This was a piece of Perspex which you had sharpened at both ends.
[15] You pushed past Officer Spooner and lunged at Officer Kumar who at the time had been pushing the meal trolley. You stabbed Mr Kumar in his head causing him to fall to the ground. You then stabbed him again in his right shoulder. Mr Kumar suffered a gash to the right side of his head which required stitches and two stab wounds to his shoulder.
[16] As Mr Spooner moved toward you, you stabbed him in the head, causing him to fall to the ground. Then Officer Capillon attempted to restrain you, however, you stabbed him in the face, arm and chest. Mr Spooner required stitches to his head and Mr Capillon received a gash to the left side of his cheek, which required surgical gluing, and a cut in the upper stomach area and cuts to his left and right arms.
Rimutaka Prison offending
19 October 2015 – wounding with intent to cause grievous bodily harm
[17] At about 2.45 pm on 19 October 2015 you and the victim were in an exercise yard area. You were leaning against the yard wall with two other prisoners behind you. The victim began to walk away and as he walked past you, you struck him in the right side of his head with your right hand in a downward motion. Your attack was unprovoked and without warning.
[18] While the victim tried to protect himself you continued to assault him, making numerous strikes with your right hand to the victim’s head, neck and body. During the attack, the victim fell to the ground on four occasions and you struck him
23 times in the area of the head, neck and body and kicked him once in the head while he was attempting to get off the ground.
[19] The victim received lacerations to his right hand, forehead, back of his head and left side of his neck and throat.
12 November 2015 – wounding with intent to cause grievous bodily harm
[20] On the 12th of November 2015 you were being escorted back to your cell from the exercise yard by three Corrections officers. You were holding with your right hand a sharp item believed to be a pencil concealed in your sweat top. Without warning you struck the Corrections officer on your left with the pencil, puncturing his right cheek. You then immediately punched him in the right side of his head, knocking him to the ground. You attempted to strike the other two Corrections officers when they intervened to stop the attack. The victim received a puncture wound to his right cheek, along with bruising and swelling to his right temple and eye area.
Personal circumstances
[21] You are 33 years old and you have three children who you last saw in 2015. You left the schooling system very early and were introduced to alcohol, drug use and criminal activity at a young age. As Mr Antunovic stressed to me you were placed in the Turangi Mongrel Mob headquarters at the age of 14. You have had an extensive use of methamphetamine and understandably a very long-term involvement with the Mongrel Mob. You have spent significant amounts of time in prison. Your family recognise your talents as a tattooist and you have reported psychotic symptoms since the death of the murder victim who, on your account, was executed next to you. You received treatment in January 2016 for paranoia and auditory hallucinations.
Previous offending
[22] From the time of your first conviction in 2002 for wilful damage, you have received a total of 90 convictions ranging from dishonesty to traffic offences. You have 11 prior convictions for violent offending including assault with intent to injure and five charges of male assaults female. Most of your violent crimes were against your ex-partner who now has a protection order against you for both herself and the children.
[23] You were sentenced by Judge Down in the North Shore District Court on the
18th of April 2016 to two years’ imprisonment in relation to one charge of assault with a weapon while remanded in Paremoremo Prison on the 30th of November 2015.
Pre-sentence assessments
Dr Barry-Walsh
[24] Dr Barry-Walsh diagnosed you as having methamphetamine induced psychosis which is now being treated. He says your psychotically-driven violence in prison appears to be different in motivation and character from your previous offending and given your response to treatment, the kind of violence you inflicted in prison is unlikely to reoccur. The Crown properly notes however that Dr Barry-Walsh’s comments do not address the likelihood of the risk you pose once you are out of the prison system and possibly again have access to methamphetamine.
Pre-sentence report
[25] Your pre-sentence report was written on the 12th of December 2016. The report writer notes your use of methamphetamine and says given your significant offending history, gang-related associations and substance abuse, your risk of re-offending is high and you are a high risk of harm to the community. It is recommended that you engage in psychological intervention and alcohol and drug counselling. The report writer notes your compliance with previous community-based sentences has been poor. A sentence of imprisonment is realistically acknowledged as being the only possible recommendation.
[26] On the 12th of September you were remanded for the sentence of preventive detention to be considered, following the receipt of two reports pursuant to s 88 of the Sentencing Act 2002. I turn now to those two reports.
Dr Duggal
[27] You were interviewed by Dr Duggal, a psychiatrist, on the 20th of
January 2017 for two hours. The key findings from Dr Duggals’s report are:
(1)You are considered to have a psychotic disorder and you meet the criteria for having an anti-social personality disorder.
(2)You have two patterns of violent offending. First, incidents of domestic violence. Second, the offending for which you are to be sentenced today involving serious and unprovoked assaults. Treatment of your psychotic symptoms is thought to be likely to improve the likelihood of you not again committing this type of offending.
(3)You are at a low risk of further violent assaults on Corrections staff or other inmates due to psychotic symptoms being controlled and your insight into your mental illness. It is noted however on release that your risk of violent recidivism could be increased particularly against any partners.
(4)You have, according to Dr Duggal, expressed an interest to participate in any programs designed to reduce your risk of violent re-offending and you are, in Dr Duggal’s view, a good candidate to engage with a violence reduction program and alcohol, drug counselling. Dr Duggal suggests you see follow-up treatment from forensic services.
Dr Huddleston
[28] You were seen by Dr Huddleston, a psychologist, on the 8th and 23rd of February 2017 for a total of two hours and 40 minutes. The key findings of Dr Huddleston’s report are:
(1)Your recent offences are more serious and “stand out” from past offending. It is said your past offending appears to be a part of the pattern of your gang-related lifestyle in which domestic violence and reactive violence has been ingrained.
(2)It is acknowledged that your most violent offending occurred when you were experiencing a mental health condition triggered by heavy
drug use. Nevertheless, Dr Huddleston says if your mental health remains stable, then your criminal history suggests you would continue to remain at risk of general offending, with violent offending relating to relationships and reactive violence to facilitate a criminal lifestyle.
(3)In applying a formal risk assessment Dr Huddleston said you are at a high risk of future violent offending. She says it is clear you will need significant and lengthy treatment to address risk factors.
(4)You have offered to undertake a restorative justice process with your victims although this could not go ahead. Dr Huddleston also notes your willingness to undertake a violent offender treatment programme and a prison-based drug treatment programme. She notes previous programmes, a short motivational programme and a drug, alcohol programme did not alter your behaviour. However these treatment programmes present an opportunity for you to receive both treatment and education in important areas.
Why I am not imposing preventive detention
[29] The Crown do not urge me to sentence you to preventive detention. In any event, I conclude that a finite sentence is preferable to a sentence of preventive detention. In reaching this conclusion, I have considered the factors set out in s 87(4) of the Sentencing Act. There are two key reasons why I am not imposing preventive detention.
[30] First, although your pattern of violent offending and particularly domestic violence is very concerning, both health assessors have recognised mental health issues contributed to the seriousness of your current offending. They note that the risk you pose to the community will be lessened if your mental health issues are controlled.
[31] Second, I am influenced by your willingness to address the causes of your offending and in particular engage in a violent offender treatment programme and a prison-based drug treatment programme. If you remain motivated it is likely that treatment will substantially modify your risk of further offending.
Starting point for your sentences
[32] Where charges unrelated, I am required to give a separate sentence for each charge.8 I will set a starting point for the 27 August 2015 offending, then a starting point for the Manawatu Prison offending and then for the Rimutaka Prison offending. I will then assess whether there are factors personal to you that require me to either reduce or uplift the starting points. I will then assess what adjustments need to be made to your sentences to reflect the totality of your offending.
[33] I first address your offending on 27 August 2015 and consider the two charges of attempted burglary, unlawful possession of a firearm and being unlawfully in an enclosed yard. You did not actually take any property in relation to the attempted burglary charges. However, you damaged both premises and caused damage in an attempt to gain entry. It is also relevant that you had a shotgun with you at the time, aggravating your offending. I consider a starting point of two years
is appropriate for all of this offending on the 27th of August 2015.
[34] I turn to the three injuring with intent to cause grievous bodily harm charges arising from offending in the Manawatu Prison on 28 September 2015 against three Corrections officers and the tariff case is R v Taueki.9 I consider there to be five
aggravating features to your offending:10
(1)Extreme violence. Your offending was not prolonged but it was unprovoked and gratuitous and involved a high level of violence.
8 Sentencing Act 2002, s 84.
9 R v Taueki [2005] 3 NZLR 372 (CA).
10 At [31].
(2)Premeditation. There was a degree of premeditation indicated by the manufacture of the shank that you used against the Corrections officers. Your decision to arm yourself and hide the weapon also demonstrates premeditation.
(3)Use of a weapon. You used a series of sharp objects as weapons against your victims in the Manawatu Prison attacks.
(4) Attacking the head. You inflicted injuries to the victims’ heads.
(5) Public official. The victims of your 28 September offending were
Corrections officers carrying out their duties.
[35] Most of these aggravating factors are however only present to a modest extent. I consider your offending in relation to these charges falls within the upper end of band two in R v Taueki, which covers a range from between 5 to 10 years. The assault with a weapon charge on 25 September 2015 warrants an uplift from that starting point. I need to also take into account, however, the difference in maximum penalty for injuring with intent as against wounding with intent. The starting point I reach in relation to the Manawatu offending is eight years’ imprisonment.
[36] Turning to the offending in the Rimutaka Prison on 19 October and
12 November, the same aggravating features were present for both instances of violence. The charges laid against you in respect of the Rimutaka Prison offending were more serious with a maximum period of imprisonment of 14 years’ imprisonment. The starting point I reach separately in respect of the Rimutaka Prison offending is eight years’ and six months’ imprisonment.
Adjustments to the starting point
[37] Before considering the totality of your offending, I look at what adjustments should be made to the starting point in relation to aggravating and mitigating factors that are personal to you.
Previous convictions
[38] You have a history of violent offending as I have already outlined. This in my view warrants an uplift of six months to recognise your pattern of violent offending.11
Mental impairment
[39] Section 9(2)(e) of the Sentencing Act provides that it is a mitigating factor if at the time of the offending you had diminished intellectual capacity or understanding. However the Sentencing Act also states that despite this section that I have just referred to the Court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance.
[40] I have taken into account Dr Barry-Walsh’s report and his conclusion that you have a methamphetamine-induced psychotic illness. The Crown accept your psychiatric condition is a factor in mitigation, but says it should not provide considerable mitigation because the cause of the psychosis was the voluntary
consumption of methamphetamine, rather than an underlying mental impairment.12
The Crown also submits you pose a risk to the public should you elect to consume methamphetamine again. They say a discount of 10 per cent is appropriate. Mr Antunovic submits a greater discount is warranted, up to the maximum of 30 per cent.13
[41] I accept there is insufficient evidence of you using methamphetamine at the time of your offending and note your marked improvement following contact with psychiatric services. I believe that this is a case in which a discount is appropriate to take account of your psychotic condition and at the time of your offending and
considered that the appropriate discount is one of 20 per cent.
11 Sentencing Act 2002, s 9(1)(j).
12 Relevant authorities include Smith v R [2014] NZHC 3033 and R v Schuster [2015] NZHC 2833.
13 E (CA689/10) v R [2010] NZCA 13.
Rehabilitation
[42] You say that you are willing to engage in alcohol and drug counselling or treatment to address the factors that have contributed to your offending. While I strongly encourage you to follow this direction, I am not aware of any steps that have formally been taken and I cannot at this stage give you any discount in relation this matter.
Remorse
[43] I have referred to the character references submitted on your behalf and I have read your letter. I have noted your willingness to engage in restorative justice and I am willing to give you a discount which will round out to be close to five per cent to reflect your remorse.
Guilty plea
[44] You are also entitled to a discount for your guilty pleas. These were entered more than 12 months after the offending but I am aware of the background circumstances that caused that delay. The Crown says they had a strong case against you and that your offending was recorded on CCTV and submit a discount of 10 to
15 per cent is appropriate. I am willing to give you a discount at the highest end of that range it will round up to being very close to 15 per cent.
[45] I am also aware of the current sentence of two years’ imprisonment that was imposed on the 18th of April last year which I will take into account when setting the total end sentence.
Adjustments for totality
[46] Taking these three sets of sentences cumulatively would produce a sentence of 18 and a half years’ imprisonment to which there would be a further increase of six months to reflect your previous offending. Deducting the adjustments that I have said I would make to reflect your remorse, mental circumstances and your guilty plea would produce an end sentence slightly in excess of 11 years’ imprisonment. In my assessment, a sentence of that magnitude would be wholly out of proportion to
the gravity of your offending. I therefore propose to make an adjustment pursuant to s 85 of the Sentencing Act 2002 to reflect the totality of your offending. That deduction will result in a finite term of imprisonment of eight years’ and six months’ imprisonment.
Minimum period of imprisonment
[47] I am satisfied that a minimum period of imprisonment is required in your case in order to hold you accountable and to recognise the considerable harm done to the community and to your victims. That minimum period of imprisonment will be four years’ and nine months’ imprisonment.
Result
[48] Mr Te Poono, can you now stand please. You are sentenced to eight years’ and six months’ imprisonment in relation to the three charges of injuring with intent to cause grievous bodily harm on 28 September 2015.
[49] You are sentenced to a concurrent term of eight years’ six months’ imprisonment in relation to the charges of wounding with intent to cause grievous bodily harm on 19 October and 12 November 2015.
[50] You are sentenced to a concurrent term of three years’ imprisonment in relation to each of the attempted burglary charges, the unlawful possession of a firearm charge and the charge of assault with a weapon.
[51] You are sentenced to a concurrent term of one month’s imprisonment in
relation to being unlawfully in an enclosed yard.
[52] This means that your end sentence is one of eight years’ and six months’ imprisonment with a minimum period of imprisonment of four years’ and nine months’ imprisonment. The two charges brought by the Department of Corrections are dismissed.
[53] I make an order for the destruction of the weapons used in the offending in the Manawatu and Rimutaka Prisons.
[54] You may now stand down.
D B Collins J
3
0