Kepu v R [2011] NZCA 104 (28 March 2011)

Last Updated: 5 April 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA680/2010 [2011] NZCA 104

BETWEEN LATU SAVELIO KEPU Appellant

AND THE QUEEN Respondent

Hearing: 23 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: M J Robb for Appellant M D Downs for Respondent

Judgment: 28 March 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Introduction

[1] Mr Kepu pleaded guilty in the District Court to a charge of manslaughter. That charge followed an incident on 15 May 2010, in which Mr Kepu assaulted a prison officer at Spring Hill Prison. The prison officer subsequently died from injuries that he sustained as a result of the assault.
[2] On 17 September 2010 Heath J sentenced Mr Kepu to six years four months imprisonment.[1] He directed that the sentence was to be cumulative on an existing sentence of two years eight months imprisonment that Mr Kepu was already serving. The Judge also ordered Mr Kepu to serve a minimum term of imprisonment of four years and two months before being eligible to apply for parole.
[3] Mr Kepu appeals against the sentence on the basis that it was manifestly excessive.

Facts

[4] On Friday 14 May 2010, as a consequence of alleged misconduct by Mr Kepu, the prison authorities upgraded his security classification from “high risk” to “maximum security”. As a result, they arranged for him to be transferred to Auckland Prison at Paremoremo on Monday 17 May 2010. Pending his transfer to Auckland they placed him on 23 hour lockdown, and segregated him from other prisoners. Mr Kepu was therefore restricted to one hour of exercise per day, to be taken whilst the other prisoners in his unit were in their cells.
[5] For some reason the prison authorities did not advise Mr Kepu immediately of the reason for his segregation from other prisoners. As a result, he became agitated about being locked up and being prevented from undertaking his usual activities. This led to a verbal exchange between Mr Kepu and several prison officers, including the victim, on Saturday 15 May 2010 when breakfast was delivered to Mr Kepu’s cell.
[6] Later that day, the victim and two other prison officers went to Mr Kepu’s cell in order to escort him to the area where he was to undertake his hour of exercise. Immediately after they opened Mr Kepu’s cell door, Mr Kepu struck the victim a forceful blow to the chin. The blow caused the victim to fall backwards and strike his head on the concrete floor. He subsequently died as a result of brain injuries that he received when his head struck the floor.
[7] Before he sentenced Mr Kepu, the Judge conducted a disputed facts hearing in order to determine whether or not Mr Kepu’s attack on the victim was premeditated. After hearing evidence from Mr Kepu and the prison officers who were present during the events that unfolded on 15 May, the Judge concluded:[2]

[13] I consider that it is likely that Mr Kepu did make some comments about Mr Palmer [the victim] that were both derogatory and threatening. However, I am not satisfied beyond reasonable doubt that any threats that may have been made were intended to be taken seriously. Had serious threats of the type described by Mr Hinton [another prison officer] been made previously, I have no doubt that more stringent security measures would have been put into place to protect Mr Palmer’s safety and that of his fellow officers.

[14] I am satisfied that Mr Kepu did not know, around 8.30am on the Saturday morning, the reason for his segregation. I accept that he wanted to know what the reason was. His inquiry of Mr Palmer is consistent with later intercom communications in which he asked for similar information.

[15] I need not make any finding on the nature of the interaction between Mr Kepu and Mr Palmer around that time because I am satisfied beyond reasonable doubt that, that whatever occurred, Mr Kepu remained agitated about his status and brooded on it throughout the morning.

[16] I find that Mr Kepu, during that time, formed an intention to assault Mr Palmer at some time, believing that Mr Palmer was either responsible for the position in which he found himself or was deliberately taunting him about his predicament.

...

[20] I limit my finding on premeditation to an intention on the part of Mr Kepu to strike Mr Palmer when the opportunity arose. There is no suggestion that Mr Kepu had an intent to cause really serious harm to Mr Palmer or to kill him. If he had had either of those intentions it is probable that Mr Kepu would have been charged with murder, rather than manslaughter. The relevance of premeditation is to assessing the culpability inherent in the punch that was thrown and which tragically, caused Mr Palmer’s death.

[8] Following the disputed facts hearing the Judge also determined that the remorse that Mr Kepu had expressed prior to sentencing was not genuine, and that it could not be taken into account as a mitigating factor.

The structure of the sentence

[9] Both counsel had provided the Judge with a number of authorities suggesting that, where an offender causes the death of a victim by means of a single punch, the appropriate starting point is between three and four years imprisonment.[3] On the basis of those authorities the Judge adopted an initial starting point of three years six months imprisonment to reflect that aspect of the crime.
[10] The Judge considered, however, that a significant uplift was required from that starting point to reflect several aggravating factors. These included the fact that Mr Kepu had caused the victim’s death by an attack to his head, and that the attack occurred in circumstances where the victim had no opportunity to defend himself. The Judge then noted that the assault was on a prison officer carrying out his duties, and that it occurred at a time when Mr Kepu was already subject to a sentence of imprisonment. He considered that these factors aggravated the offending, and warranted an uplift of four years to the starting point he had identified.
[11] Next, the Judge noted that Mr Kepu had several previous convictions for violent offending. He had been convicted of assaulting police officers on two previous occasions. At the time when the present incident occurred he was already serving a sentence of two years eight months imprisonment for an assault on a police officer that involved a number of kicks to the head. This factor led the Judge to increase the starting point by a further two years, leaving an end starting point of nine years six months imprisonment.
[12] The Judge gave Mr Kepu a credit of one-third, or three years two months, for his early guilty plea. This led him to impose an end sentence of six years four months imprisonment. He also ordered Mr Kepu to serve two-thirds of that sentence before being eligible to apply for parole. He rounded that figure to four years two months imprisonment.

Grounds of appeal

[13] Counsel for Mr Kepu accepted that the Judge’s initial starting point of three years six months imprisonment was appropriate. He submitted, however, that the subsequent uplift of four years was too great. He accepted that the aggravating factors that the Judge had identified warranted an uplift, but submitted that this should not have been greater than six to 12 months.
[14] Counsel for Mr Kepu also submitted that the Judge had applied a disproportionate uplift to reflect Mr Kepu’s previous convictions. He submitted that this factor should not have produced an uplift of more than six months. He therefore contended that an end starting point of no more than five years six months imprisonment was appropriate before taking into account the discount to be applied in respect of the guilty plea.

Was the Judge entitled to select an end starting point of seven years six months imprisonment?

[15] In R v Leuta[4] this Court reiterated its reluctance to prescribe any form of tariff, or guideline, for sentences to be imposed in cases of manslaughter. It noted that the wide variety of circumstances in which the crime may be committed meant that such an exercise was likely to be counter-productive. It confirmed that sentencing in this area requires the sentencing judge to assess, and impose a sentence commensurate with, the culpability of the offending. The enactment of the Sentencing Act 2002 also requires the court to apply the purposes and principles of sentencing prescribed in the Act.
[16] The Judge was clearly influenced in the manner in which he structured the sentence by the fact that both counsel had submitted that an initial starting point of three to four years imprisonment was appropriate. They based this submission on the approach taken in several cases where offenders had been sentenced for manslaughter in circumstances where they had caused the death of the victim by a single punch.
[17] Many manslaughter cases arise in circumstances where violence has erupted suddenly and spontaneously, often in a public place. It is typically fuelled by the consumption of alcohol and/or drugs, and will generally take the form of random street violence or a fight in a bar. The offending is mostly opportunistic, and there will seldom be premeditation or prior planning. The offender and the victim will often have had little or nothing to do with each other before the incident that has led to the charge. Many of the so-called “single punch” cases to which the Judge was referred have occurred within this type of context, and the culpability of the offender has been assessed accordingly.
[18] Mr Kepu’s offending did not occur in that context. His was a calculated attack on a prison officer in respect of whom he had been harbouring a grudge for several hours. It occurred within a prison environment, where prison officers have no option but to remain in constant contact with inmates who have the time and disposition to nurse real or imagined grievances against them. The potential for violence to erupt in such an environment is always present and yet, as the present case tragically demonstrates, in many cases it cannot be predicted in advance. Violence in a prison environment also has the potential to escalate rapidly, and may seriously undermine the discipline needed to effectively manage a penal institution.
[19] Where actual violence occurs, prison officers must be entitled to the fullest measure of protection from the courts. Issues of deterrence and denunciation are then to the forefront of the principles that the courts must apply when offenders are sentenced. The sentences to be imposed in such cases must demonstrate to other prisoners that the courts will not tolerate unprovoked attacks on prison officers. We therefore consider that the context within which Mr Kepu’s offending took place sets it firmly apart from the so-called “single punch” cases in which a starting point of three to four years imprisonment will be appropriate. We find it difficult to separate, for sentencing purposes, the physical act that caused the victim’s death from the context within which it occurred.
[20] Quite apart from these factors, the attack that Mr Kepu mounted on the victim had serious aggravating features. He used the element of surprise to launch a forceful blow to the victim’s head. This led directly to the injuries that caused the victim’s death. Such an attack, leading as it did to the victim’s death, requires a significant sentence to be imposed.
[21] A starting point of more than seven years imprisonment on a charge of manslaughter is not unusual, even in cases where death is likely to have been caused by a single punch. In R v Tai,[5] for example, the offender had felled the victim with a single punch with a closed fist. This caused him to fall face first to the ground, hitting his head hard on a concrete footpath. The offender then kicked the victim in the head with considerable force. The victim subsequently died of brain injuries caused either by the initial blow or when he fell to the ground. This Court allowed an appeal by the Solicitor-General against the sentence that the offender had received, and in doing so observed that a starting point of seven to eight years imprisonment could not have been challenged.[6] It reached that conclusion by considering sentences imposed in other manslaughter cases, and comparing those with the result produced by an analysis of the aggravating factors listed in R v Taueki.[7]
[22] Mr Kepu’s offending does not have the added factor of a kick to the head after the victim had already fallen to the ground. It does, however, have the seriously aggravating factor that it was a deliberate and premeditated attack on a prison officer who was carrying out his duties within a prison environment.
[23] Taking that factor into consideration, we have no difficulty in upholding the Judge’s ultimate starting point of seven years six months imprisonment. Although he reached that point using an initial starting point that we do not consider to have been appropriate, the end result is the same and for essentially the same reasons.

Was an uplift of two years to reflect Mr Kepu’s previous convictions disproportionate?

[24] Mr Kepu has numerous previous convictions for offences involving violence. These include common assault, assaulting the police, assault with intent to injure and threatening to kill. He also has convictions for other serious offences, including aggravated robbery using a weapon and possession of an offensive weapon.
[25] As we have already observed, he was serving a sentence of two years eight months imprisonment on a charge of injuring a police officer when the present incident occurred. The fact that an offender is already serving a sentence of imprisonment for violent offending may also be an aggravating factor. In R v Connelly[8] this Court said:

[31] ... In a case such as this, where the respondent was subject to a ... sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re-offending, particularly violent re-offending while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.

[26] Having regard to those factors we do not consider an increase of just over 25 per cent to be disproportionate.

Result

[27] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Kepu HC Hamilton CRI 2010-019-4803, 17 September 2010.
[2] R v Kepu HC Hamilton CRI 2010-019-4803, 17 September 2010.

[3] For example, see R v Sagatea HC Auckland CRI-2009-092-17953, 20 May 2010; R v Bryenton HC Auckland CRI-2009-004-3080, 7 April 2009; R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008; R v Carmichael HC Tauranga CRI-2007-070-2603, 6 September 2007; R v Schimanski HC Hamilton CRI-2006-068-215, 12 December 2006; R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006; R v Cassidy HC New Plymouth T2/03, 10 July 2003; R v Tutahi HC Wellington T4724/01, 26 April 2002; R v Roker CA 358/92, 18 February 1993.
[4] R v Leuta [2002] 1 NZLR 215 (CA).
[5] R v Tai [2010] NZCA 598.
[6] At [24].
[7] R v Taueki [2005] 3 NZLR 372 (CA).
[8] R v Connelly [2010] NZCA 52.