Police v Sekai [2017] NZDC 7342 (5 April 2017)

Last Updated: 30 August 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-012095

THREE STRIKES WARNING [2017] NZDC 7342

NEW ZEALAND POLICE

Prosecutor

v

SIMON BARRY SEKAI

_Defendant

Hearing:	5 April 2017
Appearances:	Sergeant N Williams for the Prosecutor L Drummond on behalf of K Vesty for the Defendant
Judgment:	5 April 2017

_{NOTES OF JUDGE T J GILBERT ON SENTENCING}

[1] The first thing I need to do is read you a second strike warning and then I will return to sentencing.

[2] Given your conviction for wounding with reckless disregard for the safety of Mr Wills you are now subject to the three strikes law. This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.

[3] If you are convicted of any serious violent offence other than murder or manslaughter then you will be sentenced to the maximum term of imprisonment for

NEW ZEALAND POLICE v SIMON BARRY SEKAI [2017] NZDC 7342 [5 April 2017]

each offence. That will be served without parole or early release unless it would be manifestly unjust.

[4] If you are convicted of manslaughter committed after this warning then you will be sentenced to imprisonment for life. The Judge must order that you serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.

[5] If you are convicted of murder after this warning then you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so. If the Judge finds that it is manifestly unjust to do so then the Judge must impose a minimum period of imprisonment of at least 20 years, unless that would manifestly unjust, in which case the Judge must sentence you to a different minimum period of imprisonment.

[6] Finally, if you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence you are convicted unless the Judge considers that would be manifestly unjust.

[7] You will get a written copy of all of that. I am required under the law to read that warning to you. The upshot of it is Mr Sekai is that if you are convicted of a serious violence offence after this, your circumstances will be dire.

[8] Now I will return to sentencing on these two charges which are before me. There is one of wounding with reckless disregard for the safety of others. That carries a maximum potential penalty of seven years’ imprisonment. There is also, associated to that, one charge of unlawfully being in a yard.

[9] The facts are set out in a summary of facts. Whilst you cannot remember the incident you do not take any issue with what is set out in there. At around about 9.25 in the evening on 9 December last year you were in an intoxicated state in Hargood Street in Woolston. You walked up a driveway. There is a fenced single storey house on the rear section there. It is occupied by the victim. He lives there

with two young children and his wife. You did not have authority to be there. At the time you had only been released from your former sentence about 10 days prior. As part of that you were on parole.

[10] The victim’s wife heard you and then saw your head through a window. As a result the victim went outside to have a look. It was dark and he could not see anyone so he yelled out. You yelled back, “Who the fuck are you?” The victim saw you stumbling and you appeared to be drunk. He asked if you were lost. While he was talking to you, you swung your fist at him, hitting him in the chin. The victim told his wife to call the police. As the victim’s wife was walking back inside the house, you tried to follow her inside.

[11] Fearing for the safety of his family the victim grabbed you and pulled you backwards and pushed you onto the ground. You and he then struggled. You punched him a number of times. You then pushed him off, causing him to roll onto his back. As he was lying on the ground you bit into his right cheek with force. You held onto his cheek with your teeth until he managed to get his fingers in your mouth to release the bite. His vehicle was parked nearby and it seems it was damaged in the incident.

[12] As a result he suffered an open wound to his right cheek, bruising and scratching to his body, a haemorrhage in his left eye, and a chipped tooth. It is fortunate that some months now have passed and there is only minor scarring that is visible. It seems the primary impact has been on his family. His children are still traumatised by what happened that night. As it says in the victim impact statement you also effectively ruined their Christmas as a family.

[13] This was a very nasty incident. It was unprovoked and it shows that your default response is what could be described as animalistic violence.

[14] I have your previous convictions. You were sentenced to three years for aggravated robbery in late 2015. As I have mentioned you were only on parole for a matter of days at the time this offending occurred. Quite apart from that, you have convictions for assaulting a female in 2012, aggravated assault in 2011, aggravated

burglary in 2008, possession of a knife in 2007 and other convictions for fighting. Apart from the violence-based convictions there are a number of other convictions as well.

[15] The pre-sentence report is not especially positive. You did not really engage in that process, saying that it would not make any difference. You did say you did not have any memory of the offending and you accepted the summary of facts. You were recalled to prison almost immediately as a result of what you did. Your risk of harm is assessed as high and the report writer has commented on your enduring pattern of violence from a young age, including in the Youth Court.

[16] You were expelled from school during your childhood. You have associations with two gangs. You do have a partner and you also have a young child who is around about two years old. You are letting yourself down but also them down. You were prepared to go for restorative justice but that never got off the ground because of unwillingness on the part of the victim, unsurprisingly it has to be said. You have, to your credit written a letter which indicates that you are sorry for the impact that you have had on his life and his family’s lives.

[17] I have received helpful submissions from both the police and Ms Drummond on your behalf. Ms Drummond’s primary contention is that an end sentence of around about two years would be appropriate. The police suggest somewhat more is appropriate. Whatever sentence I impose on you will be cumulative on the sentence for aggravated robbery and it will also be served without parole because of your subjection to the three strikes law.

[18] In sentencing you I need to hold you accountable and promote in you a sense of responsibility. I need to denounce and deter what you have done and given your history, protect the community. I have taken into account the gravity of what you have done, the seriousness of it in comparison with other offences, the need for consistency with similar sentencing and the effect this has had on the victim and his family. I have also considered the other sentencing purposes and principles, but the ones I have mentioned are those which I consider are the primary ones for current purposes.

[19] There are aggravating features. You were unlawfully on the property. You were recently released on parole. There was the extent of harm that has been caused, the fact that you attacked the victim’s head in what was a very nasty incident involving real violence, biting into the cheek.

[20] On the upside for you Mr Sekai you have pleaded guilty moderately early at case review and you have also written a letter of apology and were prepared to go to restorative justice.

[21] I have considered the leading cases of R v Nuku1 and R v Taueki2. They are helpful, although they are not directly on point because the charge you are facing is wounding with reckless disregard, rather than with a specific intent to cause harm.

[22] In my view having regard to all of the factors I have already discussed, the appropriate starting point is one of two years and one month imprisonment. I would then apply an uplift of seven months to reflect your previous history and the fact that you were on parole at the time. That takes me to 31 months. I would then apply a seven month reduction for your guilty plea and what other mitigating features I have mentioned which brings me back to an end sentence of 25 months’ imprisonment. That will be the sentence I impose you, two years and one month. That will cumulative on the three years that you are serving for aggravated robbery and it will be served without parole or early release.

[23] The second charge is a one month sentence, concurrent.

On review, I have noticed the minor error in calculations above, namely the reference to 31 months instead of 32 months. Clearly I meant 32 months, and the end sentence of 2 years and 1 month was that which I meant to impose.

T J Gilbert

_{District Court Judge}

1 _{R v Nuku DC Wellington CRI-2009-085-8318, 12 March 2010}

2 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)