KEREMETE v R [2004] NZCA 138 (8 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA411/03THE QUEEN

v

JUSTIN WIREMU KEREMETE

Hearing: 29 June 2004

Coram: O'Regan J Goddard J Chisholm J

Appearances: S J Shamy for Appellant
H Lawry for Crown

Judgment: 8 July 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1] The appellant, Mr Keremete, appeals to this Court against a sentence of preventive detention imposed by Justice William Young in the High Court at Christchurch on 18 September 2003. He had earlier pleaded guilty to nine charges of aggravated robbery, two charges of robbery, two charges of kidnapping, one charge of aggravated wounding and one charge of aggravated burglary in the District Court. He was committed to the High Court for sentencing because the Crown sought a sentence of preventive detention.
[2] The sentencing Judge described the appellant’s offending as a “crime spree”. All of the offending occurred between January and June 2003. As no issue is taken with the Judge’s summary of the offending, we reproduce it here:

[3] The first offence occurred on 14 January this year. On that day you entered the Merivale branch of the Westpac Trust. You approached a female teller claiming to have a gun in your pocket and demanding money. In this way you obtained $1,377. In relation to this behaviour you have pleaded guilty to a charge of robbery.

[4] The second offence was on 30 January. You went to a pool hall. While there, you asked an employee for assistance at a pokie machine. Threatening her with what appeared to her to be a pistol, you robbed her of $1,150. You pleaded guilty to a charge of aggravated robbery relating to this incident.

[5] The third offence was on 13 February. You went to another pool hall. There you presented a pistol at the sole employee on duty and demanded cash. You struck him in the face with a clenched fist and grabbed two bags of cash containing $372.35. As you left you were pursued by the employee. You presented the pistol at him and told him to back off and, in this way, you were able to make good your escape. On this occasion you were disguised as you were wearing a hooded sweatshirt and dark wrap-around sunglasses. You pleaded guilty to a charge of aggravated robbery arising out of these events.

[6] The fourth offence was on 23 February. On this occasion you went to a Video Ezy outlet where one employee was present. You robbed that attendant of $194. In the course of this robbery you threatened the employee by holding or fiddling with something under your shirt. In respect of this offence you have pleaded guilty to a simple charge of robbery.

[7] The next and fifth robbery was on 2 March. You and an associate went to a bar. You were both disguised with bandanas wrapped over your lower faces. Your associate had a pistol and you had a pump action shotgun. You ordered the patrons on to the floor. You struck one of the patrons with the butt of the shotgun. As a result he suffered injuries which required medical treatment in the form of stitches. You and your associate obtained $2,700. Arising out of this incident are charges of aggravated robbery and aggravated wounding to which you have pleaded guilty.

[8] The sixth robbery was on 23 March. You went to another bar armed with the shotgun and robbed the sole female employee on duty of $8,554.05. In the course of this robbery you wished to obtain access to pokie machine cash. When the employee told you that she did not have the key to the pokie machines you called her a “liar”. You trained the shotgun on her. You followed her into an office where she looked for the key. The money you obtained came from a safe in the office. So you pleaded guilty to a charge of aggravated robbery in relation to that offence.

[9] The seventh robbery was on 22 April. You and your associate entered a bar. You were both disguised with bandanas and wigs. He was armed with a pistol and you with the shotgun. You forced patrons and staff on to the floor and obtained some $4,000.

[10] The eighth robbery was on 30 April. This was in a bar in Timaru. You were armed with the shotgun. You presented the shotgun to the bar manager claiming it was loaded. You demanded pokie machine money and became aggressive when she said she could not get the till open. A patron approached and you threatened him. You then pulled a scarf up over your face to disguise yourself and continued to demand money. You obtained some money from a till and then demanded that the bar manager open the pokie machines. When she said that she did not have the key you told her to go and get it. You then walked into the public bar. A patron there tried to grab the shotgun and you threatened him. You were agitated and aggressive. You then left the premises presenting the firearm at the patrons as you went. On this occasion you obtained $3,776.

[11] The last of the offences in this particular series was on 22 May. You went to a TAB armed with the shotgun. You used it to threaten the sole employee and the three customers. In this way you obtained $2,305.

[12] In relation to the robberies which I have mentioned which started on 23 March you pleaded guilty to charges of aggravated robbery.

[13] By the beginning of June you were a suspect in relation to some at least of these robberies and you knew that you were wanted by the Police.

[14] On the night of 6 June you went to a private address. You were armed with a shotgun and a knife. You also had rope with you. Two people, a husband and wife who were both aged 55, were present. You initially claimed that your father was having a heart attack and that you wanted to use the telephone. The woman tried to help you but you then presented the firearm and required her to take you to her husband. You then made both of the complainants lie down. You tied them up with ropes around their ankles, hands and throats so that movement of their legs would put pressure on their necks. The expression “hog-tied” has been used to describe what you did. You then sat on a chair and loaded and unloaded the shotgun. You made remarks which made the complainants think, understandably, that you intended to murder them. During the night you released the woman briefly so that she could obtain her and her husband’s cash cards and you then forced her to give you the PIN numbers. You then tied her up again. During another phase of events, you untied the feet of both complainants and took them at gun point to the garage where you made them both get into the boot of their vehicle. You then drove to a cash machine where you obtained $500. You returned to the house where you made the complainants go back into the living room and then tied their feet as before. You also ripped up some material and forced that it into the mouth of the male victim. The incident ended when you forced them to drive you to the police station where you gave yourself up. This whole incident took many hours. I think 18 hours was the period mentioned in one of the victim impact reports. In the course of this incident you touched the woman complainant in ways which resulted in you facing a charge of indecent assault. You deny a sexual overlay to your conduct and the relevant charge is apparently to be defended. But irrespective of whether there was a sexual component to what you did or not, this was a horrific incident in which you terrified two people who you did not know and humiliated and degraded them over a prolonged period of time. You led them to believe that they would be murdered. This was very much the crescendo of your offending and I believe that their lives were seriously at risk. It is offending of a very grave nature. In relation to this series of events you have pleaded guilty to charges of aggravated burglary, kidnapping and aggravated robbery.

Sentencing remarks

[3] The Judge noted that the primary issue before him was whether a sentence of preventive detention ought to be imposed, given that the appellant was clearly a candidate for such a sentence. He noted the terror experienced by the victims, particularly the two victims of the kidnapping offences. The Judge gave full credit to the appellant for the fact that he had given himself up, made a full statement to the police and pleaded guilty promptly. He said this indicated that the appellant had an underlying sense of right and wrong. However he noted that the appellant had handed himself into the police in 1998 in much the same way, after an earlier series of offences. He also accepted that the appellant had exhibited remorse as had been recorded in the reports prepared by a psychologist and a psychiatrist under s88 of the Sentencing Act 2002.
[4] The Judge noted that the appellant’s offending was serious, and that the recent offending indicated an escalation in the seriousness of the appellant’s offending. He had been sentenced to a term of six years imprisonment in 1998 on four counts of robbery, one count of credit card fraud and one of breach of parole. As already indicated he gave himself up to the police after that offending as well.
[5] The Judge noted that Mr Keremete had failed to address the causes of his offending, and had not really engaged with rehabilitation programmes. He referred to the psychologist’s report which indicated that, unless Mr Keremete addressed his tendency to substance abuse, there was a major risk of re-offending. The Judge concluded from that report and the report of the psychiatrist, which did not contain an explicit assessment for the risk of re-offending, that unless Mr Keremete received the right incentives to address his substance abuse, the consequences of the abuse he endured as a child, his developing pattern of anti social behaviour and his gang association, then he was at a high risk of re-offending in a serious way.
[6] The Judge’s conclusions on those matters meant that the factors listed in paras (a) to (d) of s87(4) of the Sentencing Act could be taken as indicating that a sentence of preventive detention was appropriate. This left the factor mentioned in para (e) of that subsection, namely “the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society”. The Judge said that this was the fundamental question to be addressed. He expressed the view that any finite sentence would need to be very long, given the seriousness of the offending and the aggravating factors. He thought that the starting point suggested by the Crown of 14 years imprisonment was “very much on the light side”. He concluded that a finite sentence would need to be at least 12 years imprisonment and possibly up to 15 years imprisonment. However he was concerned that, if a finite sentence were imposed, there would be insufficient incentive for the appellant to address the causes of his offending, because he would be entitled to be released at the end of the sentence regardless of the then perceived risk of re-offending.
[7] Accordingly the Judge was satisfied that the requirements of s87(2) of the Sentencing Act were made out and determined that in the exercise of his discretion he would impose a sentence of preventive detention. He fixed a minimum non-parole period of eight years, which he said was the sort of non-parole period he would have imposed if a determinate sentence has been imposed. The sentence of preventive detention was imposed in respect of all charges other than the aggravated burglary. On that charge Mr Keremete was sentenced to seven years imprisonment.

Appellant’s submissions

[8] On behalf of the appellant Mr Shamy submitted that:

(a) the Judge placed too much weight on the issue of the appellant’s drug addiction and, associated with that, gave undue emphasis to the proposition that, if a finite sentence were imposed, there would be insufficient incentive for the appellant to address the causes of his offending;

(b) in setting the non-parole period of eight years, the sentencing Judge did not sufficiently take into account the mitigating factors, particularly the fact that the appellant had handed himself in, made full admissions, pleaded guilty at an early stage, and indicated both remorse and insight to his offending.
[9] As to the first point, Mr Shamy said that the psychiatric and psychological reports indicated that drug abuse was only one factor contributing to the appellant’s offending. Others such as his maladjusted childhood, gang involvement and the failure of previous attempts at rehabilitation were highlighted. He said the appellant was not so affected by drugs during his offending that he could not conduct himself in a controlled manner. He said it did not necessarily follow that completion of drug courses would remove the risk to the community.
[10] As to the minimum non-parole period, Mr Shamy submitted that there minimum period should have been about six years. He argued that the sentencing Judge’s assessment of the likely finite sentence to be imposed in this case (12 to 15 years) was a starting point, and that, after appropriate deductions for guilty pleas, a sentence of about nine years would have been imposed. He said that two thirds of nine years would be six years, and that this would therefore have been the minimum non-parole period that applied in this case if a finite sentence had been imposed. He said the Judge had not made any upward adjustment for public safety reasons, so that a minimum non-parole period of six years should now be substituted for the eight year period set by the Judge.

Crown submissions

[11] On behalf of the Crown Mr Lawry submitted that the Judge was right to impose a sentence of preventive detention. He noted the purpose of preventive detention is to protect the community from those who pose significant and ongoing risk to the safety of its members (s87(1) of the Sentencing Act). He said the Judge had correctly assessed each of the matters he was required to take into account under s87(4) and, having done so, had exercised his discretion in favour of imposing preventive detention. He said the approach taken by the Judge corresponded with the approach suggested by this Court in R v C [2003] 1 NZLR 30. He said that the Judge had not erred in exercising his discretion to impose the sentence of preventive detention in the circumstances of this case.
[12] As to the minimum term of imprisonment, Mr Lawry said it was clear that the Judge had approached the issue on the basis suggested by this Court in R v Johnson CA221/03 23 October 2003, at paras [30]-[32]. In particular Mr Lawry highlighted the statement made by this Court at para [31] of the decision:

When contemplating, in a case requiring preventive detention, whether a minimum term exceeding five years is required, a method which is not entirely subjective or arbitrary might be to consider what finite term may have been appropriate after taking into account all relevant aggravating and mitigating factors and then, having regard to the gravity of the offence, what the period of the minimum term might properly be in relation to the possible finite term.

[13] Mr Lawry said that the Judge indicated that the finite term in this case would have been in the range of 12 to 15 years, and that, if the approach outlined in Johnson were followed, this would yield a minimum non-parole period of eight years or higher. In particular Mr Lawry said that Mr Shamy had wrongly interpreted the Judge’s sentencing notes when suggesting that the Judge had referred to a starting point of 12 to 15 years – what the Judge actually said was that the finite term which would need to be imposed in this case if preventive detention were not imposed would be 12-15 years. It was clear he was referring to the end sentence, after giving the necessary benefit for mitigating factors, not the starting point as Mr Shamy appeared to assume. Mr Lawry submitted that a finite sentence of nine years, as suggested by Mr Shamy, would be wholly inadequate, particularly when the aggravating features and the totality principle are taken into account.

Was preventive detention appropriate?

[14] In our view the sentencing Judge addressed his mind to each of the matters referred to in s87(4). We can discern no error in the way that each of those factors was evaluated, nor do we disagree with the Judge’s assessment of those factors. In particular we reject Mr Shamy’s contention that the Judge took too simplistic an approach, and over-emphasised the importance of the appellant’s drug abuse.
[15] As the Judge correctly identified, the key question was whether a lengthy determinate sentence provided adequate protection for society. In view of the escalating seriousness of the appellant’s offending, the high risk of reoffending identified in the psychologist’s report, the appellant’s past conduct (particularly his previous offending and the fact that the present offending happened soon after the appellant’s release from prison) and the appellant’s failure to engage effectively with rehabilitation efforts, the Judge was entitled to conclude that preventive detention was necessary in order to ensure that the appellant had the greatest possible incentive to address the causes of his offending.
[16] Mr Shamy referred us to a recent High Court case, R v Henare and Stirling HC AK CRI 2003 004 41173/41179, 30 April 2004, Harrison J in which sentences of five and a half years imprisonment and three and a half years imprisonment were imposed for aggravated robbery and kidnapping. We do not find this decision of assistance in the present circumstances because the offending was of a different kind and the question of preventive detention was not raised.

Minimum non-parole period

[17] We accept Mr Lawry’s submission that the approach taken by the Judge in relation to the minimum non-parole period properly followed the approach suggested by this Court in Johnson. In view of the Judge’s determination that a finite sentence would have had to be between 12 and 15 years, the minimum non-parole period of eight years was uncontroversial. In our view the appellant’s submission on this point was based on a misinterpretation of the sentencing Judge’s remarks. We are satisfied that the sentencing Judge did not suggest that a finite sentence of nine years would have been sufficient for this offending, and, indeed, we agree with his statement that a term between 12 and 15 years would have been required if preventive detention had not been imposed.
[18] Mr Shamy provided us with a recent High Court decision R v Edwards HC AK CRI 2002 092 206125, 14 May 2004, Randerson J. In that case the defendant was sentenced to preventive detention having pleaded guilty to two counts of kidnapping, two of aggravated robbery, one of causing grievous bodily harm, one of robbery, one of assault with intent to rob and two of unlawful taking of motor vehicles. A minimum non-parole period of six and a half years was imposed in that case. In that case the Judge determined that, if a finite term were to be imposed, the starting point for the assessment of that term would be 13 to 14 years imprisonment, to reflect the totality of the offending. He said that after taking into account guilty pleas he would arrive at a finite sentence of ten years imprisonment. That would mean that the Judge had a discretion to impose a minimum period of imprisonment of up to two thirds of that sentence or about six and a half years. Having determined to sentence the offender to preventive detention in that case, the minimum period actually imposed was six and a half years.
[19] The sentencing Judge in the Edwards case took the same approach as William Young J took in the present case, and the difference in the minimum non-parole periods imposed in the respective cases is attributable to the different finite sentences which would have been imposed in each case if the Judges had decided not to impose preventive detention. There is nothing in the Edwards case which leads us to conclude that there was any error of approach in the present case or that the Judge was wrong to impose a minimum non-parole period of eight years.

Rehabilitation

[20] We endorse the Judge’s observation that a sentence of preventive detention provides the maximum incentive for the appellant to take advantage of opportunities provided to him to rehabilitate himself. In that regard it is encouraging that, in a letter addressed to us, Mr Keremete indicated that he wishes to start University studies. Justice William Young commented that Mr Keremete was an intelligent person. We encourage him to use that intelligence while incarcerated to improve himself and to address the causes of his offending. He needs to take a positive approach to the courses made available to him in prison, and take advantage of those courses so that he can demonstrate to the Parole Board when he becomes eligible for parole that he has addressed the underlying causes of his offending. It is also vital that, once he is released into the community again, he is provided with appropriate support systems so that he is not left in the position he faced after his release from his previous sentence, when he found himself turning to the Black Power gang for support.

Result

[21] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington