R v McDermott-Meade [2017] NZDC 13123 (16 June 2016)

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

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Hearing:	16 June 2016
Appearances:	K van der Plas for the Crown P Drummond for the Defendant McDermott-Meade F Steedman for the Defendant Takamore P Murray for the Defendant Tunnell
_Judgment:	_{16 June 2016}

[1] William McDermott-Meade, William Tunnell and Aaron Takamore, you all appear for sentencing for the parts that you played in a serious assault on [victim 1] on 12 August last year at Pahiatua. Also for the damage to [victim 2]’s car on the same occasion.

[2] Mr McDermott-Meade, you also separately appear for sentence for assault on the same occasion on [victim 2], theft of cash from her, intentional damage of a window at the police station after you were detained and assault of a police officer.

[3] Mr Tunnell, you also separately appear for sentence for breach of your early release conditions.

[4] Mr Takamore, you earlier pleaded guilty to wounding [victim 1] with intent to cause him grievous bodily harm. You have applied to vacate your guilty plea and I grant you the opportunity to do that, which means that the conviction for that charge is quashed. The charge has been re-laid as wounding with intent to injure, which carries half the maximum penalty, and you have pleaded guilty to that charge.

[5] The earlier plea stands in relation to your part in the damage to [victim 2]’s car. You are also for sentence for a separate wilful damage, in the form of graffiti of a kiosk in Manawatu Prison and also for breach of community work.

[6] For all three of you, the facts have been previously recited in sentence indications given for both Mr McDermott-Meade and for Mr Tunnell. For Mr Takamore’s benefit the facts on which I proceed are that there was, initially an altercation between Mr Tunnell and the victim. That was outside Mr Tunnell’s address in Pahiatua. That Mr Tunnell placed the victim in a headlock when the rest of you intervened. That consisted of you joining the fray, Mr McDermott-Meade, you Mr Takamore and also Mr Kenneth Tunnell.

[7] The victim was hit to the ground and, while on the ground, he was kicked and punched multiple times to his head and body, to the point he went in and out of consciousness. When [victim 2] tried to get him back to her car he was assaulted through the window of the car. Then the group of you set about damaging the car before they were able to leave.

[8] [Victim 1] suffered very serious injuries. He suffered bleeding to his brain, a broken eye socket, bruising to his arm and wrists, substantial bruising over his head, neck, torso and legs. Someone used a wooden paling at one stage and pieces of it were removed from [victim 1]’s eye. In his victim impact statement he talked about having lacerations to his head which had to be stapled. At the time he wrote the victim impact statement he said he suffered ongoing headaches, he required surgery

to his eye socket and he had spent time in hospital. He continued to be wary, in case he ran into members of your family again.

[9] The factors which give rise to a starting point sentence are that there were in the end four of you onto one, the multiple kicks and punches which were aimed at [victim 1]’s head and body, the danger that entailed and the very serious injuries suffered by [victim 1].

[10] I moderate earlier comments that I have made though in relation to Mr Tunnell’s starting point given that he suffered a broken arm early in the piece, which to some extent meant perhaps the more serious assaults were committed by others.

[11] A point made today on your behalf, Mr Takamore, is that you joined the fray. In other words, to start with you were trying to help out Mr Tunnell and that was your original motivation. That applies also to you, Mr McDermott-Meade.

[12] What is clear, however, is that you as a group very quickly overpowered [victim 1] and what happened from there was a very serious assault causing the injuries that I have detailed.

[13] I have given you a sentence indication Mr McDermott-Meade, of a starting point for all of your offences, of three years’ imprisonment. I gave an indication of a deduction of four months for your young age at that time and a further eight months’ discount for your guilty pleas. That took me back to 24 months. I indicated home detention was available as an outcome for you and you could have other discounts by virtue of your age, if you demonstrated that those further discounts were warranted.

[14] The submissions made by your lawyer today are that I can also have regard to the fact you have engaged in alcohol and drug counselling. That you have also demonstrated some remorse, particularly as to the relationship your family has had

previously with [victim 1]. You want to ensure there are no hard feelings moving forward, in that he does not need to feel afraid of you or your family.

[15] There is reference also to the period that you spent on a 24-hour curfew when not on community detention.

[16] I consider that these are relevant factors that affect the end point that I indicated to you. I ask that the sentence indication remarks that I made lay alongside the sentencing remarks I make now. However, I adjust your sentencing as follows. I start at the 36 months indicated, the three years. I deduct six months for your age and the steps that you have taken towards your rehabilitation and factors raised in the pre-sentence report, relating to your ongoing willingness to do things that will assist you, avoid alcohol and other issues that might lead to this sort of offending in the future. I allow you two months for your expressions of remorse and I allow seven months’ for your guilty pleas.

[17] That takes me back to an end point of 21 months. Home detention is recommended in the pre-sentence report and you have a suitable address. At your young age I regard that as an appropriate outcome and 21 months translates to about

10 and a half months of home detention. I reduce that further to take account of the period you spent on 24-hour curfew.

[18] The sentence that I impose on you therefore, in relation to the charge of wounding [victim 1] with intent to injure him, is nine months’ home detention. That sentence will be served at [address deleted], Palmerston North.

[19] There will be special conditions in accordance with the pre-sentence report. They involve:

(a) To travel immediately from Palmerston North District Court to [address deleted], Palmerston North and there await the arrival of a Probation Officer and a representative of the monitoring company.

(b) To reside at [address deleted] Palmerston North for the duration of home detention.

(c) To abstain from the consumption and/or possession of alcohol and non-prescription drugs, unless prescribed to you by a medical practitioner, for the duration of home detention.

(d) To attend an alcohol and other drug assessment and attend and complete any treatment and/or counselling, as recommended by the assessment to the satisfaction of the probation officer and treatment provider.

(e) To attend a pre programme interview and if found suitable to attend and complete a departmental rehabilitation programme to the satisfaction of the probation officer and the programme facilitator.

(f) Not to communicate or associate with the victim of your offending unless you have the prior written consent of your probation officer.

(g) To attend a maintenance programme on the completion of a departmental programme for the duration of the sentence as directed by the probation officer.

[20] I also impose six months’ standard post-detention and special post-detention conditions, as follows:

(a) To attend an alcohol and other drug assessment and attend and complete any treatment/counselling, as recommended by the assessment to the satisfaction of the probation officer and treatment provider.

(b) To attend a pre programme interview and if found suitable to attend and complete a departmental rehabilitation programme to the satisfaction of the probation officer and the programme facilitator.

(c) Not to communicate or associate with the victim of your offending unless you have the prior written consent of your probation officer.

(d) To attend a maintenance programme on the completion of a departmental programme for the duration of the sentence as directed by the probation officer.

[21] On the charge of wilful damage of [victim 2]’s car, you are convicted and ordered to pay reparation of $587.50.

[22] On the charge of assaulting [victim 2], you are convicted and sentenced to two months’ home detention concurrently.

[23] The theft of the cash therefore, you are convicted and sentenced to one month’s home detention concurrently.

[24] For the wilful damage of the police station window, you are convicted and ordered to pay $100 reparation to the New Zealand Police for that window.

[26] Mr McDermott-Meade, I have some confidence that you are a young man with promise and you have support in the community. You will have the help that will ensure that we do not see you back here again. Whether that is so is entirely up to you.

[27] Mr Tunnell, I have also previously given you a sentence indication. Again, I

[28] I have received a very positive pre-sentence report for you. The comment that makes perhaps the most impact for me, is your recognition that you are getting too old for this sort of thing and that you would far rather be a positive influence for

your family. You are starting to realise that your previous associations have perhaps not been healthy for you and your family. I take your expressions of remorse as genuine given the comments in this pre-sentence report. I think they are worthy of credit.

[29] Whether or not you are able to leave the gang, I know how difficult that can be. If you do remain within the gang it is within your power to be a force for good within the gang and I think that is something that is available for you.

[30] I indicated an end sentence which you accepted of 31 months’ imprisonment. I reduce that by three months, for what I regard as being genuine remorse.

[31] Accordingly, the sentence on the charge of wounding with intent to injure is

[32] On the charge of wilful damage, you are convicted and sentenced only to the reparation of $587.50.

[33] On the charge of breach of release conditions, you are convicted and discharged. I do not regard it as appropriate to increase your penalty because of that charge. It will really be a matter for the Parole Board as to what, if any, weight they place on that. Your pre-sentence report as suggests you are in a better space where the Parole Board might be able to work with you and have you released sooner rather than later, but that is a matter for you to take up with the Parole Board.

[34] Mr Takamore, on the new charge to which you have pleaded guilty, I am required to renew the first warning. So by cancelling your previous conviction for wounding with intent to cause grievous bodily harm, but now convicting you of wounding with intent to injure I am required by law to explain to you that this conviction itself makes you subject to the three strikes law. I am now giving you a warning of the consequences of another serious violence conviction and you will be given a written notice of this which lists serious violent offences:

(a) If you are convicted of any serious violence offences, other than murder, after this warning and if a Judge imposes a sentence of imprisonment, then you will serve all of that sentence without parole or early release.

(b) If you are convicted of murder after this warning, then you would serve that sentence of life imprisonment without parole, unless that would be manifestly unjust. In that event, the Judge would sentence you to a minimum term of imprisonment.

[35] The warning basically means, if you came back on an offence like this again and you got jail, you would serve all of it – no parole. That is what that warning really means.

[36] Mr Steedman has described for me today that he considers you to be in a far better space than previously. That you have made good use of your time while you have been in prison. You have expressed remorse, at least through him. That I should not read too much into either your previous conviction for injuring with intent to injure or the graffiti offence committed while you have been in custody.

[37] The pre-sentence report, to me, is of assistance. The way I approach you, is that you are developing some insight. You are not particularly young but equally you have got a great deal of life, and I hope a productive life, ahead of you.

[38] I have indicated that for your role in what occurred I would adopt a starting point of three years’ imprisonment. The Crown invites me to increase that, because of your previous conviction. I accept Mr Steedman’s submission, however, that one can step back a little from that offence. While it is a serious violent offence, here I regard the dynamics of what occurred. What unfolded is not necessarily influenced by any need to regard your previous conviction as one for which I have to protect the community or anything of that nature. So I am not going to increase that three years because of your previous conviction. Some Judges might but I am not going to.

[39] I also do not increase your sentence because of the wilful damage or the breach of community work. You have correctly recognised that the graffiti offence was a very silly thing to do. It took you off privileges that you would have been entitled to. It may be something that the Parole Board will take into account; I am not sure. However, I think three years is still the appropriate starting point.

[40] There are some positive things about you for which I would allow two months’ reduction including the expressions of remorse conveyed through Mr Steedman. I would give a further nine months’ discount for your guilty pleas. You indicated that at a very early stage and you deserve as much credit for that as I am lawfully able to give you. That takes me back to 25 months’ imprisonment as the end sentence. That probably means, given the time in custody, you will be very shortly before the Parole Board.

[42] On the charge of wilful damage, you are convicted and ordered to pay reparation of $587.50.

[43] Mr Takamore, you are convicted and ordered to pay reparation for that wilful damage charge of $1022. I regard that as being sufficient penalty given the other term of imprisonment I have imposed.

[44] On the breach of community work, you are convicted and discharged. The community work, if there is any outstanding, is cancelled so that you come out with a clean slate.

[45] Perhaps I would conclude by noting that there are several members of your collective whānau here today. I am encouraged by the support they give you. I hope they continue to support you, particularly at your forthcoming boards Mr Tunnell and Mr Takamore. I think you have positive support in the community that would provide some indication that you have better paths forward than this offence

indicates and that positive support will, I think, assist you in the future in staying out

District Court of New Zealand

R v McDermott-Meade [2017] NZDC 13123 (16 June 2016)