R v Eru [2022] NZDC 11976 (27 June 2022)

Last Updated: 24 November 2024

IN THE DISTRICT COURT AT HUTT VALLEY I TE KŌTI-Ā-ROHE KI TE AWAKAIRANGI

CRI-2021-096-000873

[2022] NZDC 11976

THE QUEEN

v

CHEYENNE ERU

Hearing:	27 June 2022
Appearances:	R Buckman for the Crown S J Gill for the Defendant
Judgment:	27 June 2022

NOTES OF JUDGE T M BLACK ON SENTENCING

[1] Mr Eru, on 9 May, I gave you a sentence indication on three charges arising from two incidents. The indication was an end-point of four years and one month’s imprisonment subject to potential further adjustment depending on reports. You accepted that indication and pleaded guilty, and you are now for sentence on those charges.

[2] The first is a charge of assault on a prison officer. At the time, you were a prisoner at Remutaka. The corrections officer was conducting a cell cleanse. He approached your cell and asked if you wanted to undertake a clean. You said you would. When the door was opened by the corrections officer, you have rushed at him and punched him in the face with a closed fist. He suffered a cut to his tongue. That incident was in October 2020.

R v CHEYENNE ERU [2022] NZDC 11976 [27 June 2022]

[3] Then in March of 2021, you were at home in Lower Hutt with a number of family members. You came up behind your stepfather and stabbed him five times with a knife. He received stab wounds to the right side of his back and three stab wounds to his right forearm. You ran out of the door and onto the street, and your brother chased you and you stabbed him in his bicep. Both victims required medical treatment. Your stepfather was hospitalised for a period of time. He spent four days in hospital, required significant medical treatment. Your brother was treated and discharged the same day as the incident.

[4] Your brother has not provided a victim impact statement. Your stepfather has. He indicates that underlying all of this are mental health issues. He says that: “Locking someone up is not the answer but I feel locking him up is the safest thing for other people.” He said: “I am glad it was me and not somebody else in my family. I am a big guy and someone else may not have been so lucky. I do not want to see him hurt or kill anyone. I just want him to get help.”

[5] You have relevant previous convictions including convictions for wounding with intent to injure and for assault on a person in a family relationship. You were imprisoned for 23 months in December 2020 in relation to those charges. You have a number of other charges of limited relevance. Most of your previous offending has been dealt with by sentences of supervision or intensive supervision.

[6] There is an AOD report which says you meet DSM-V criteria for severe substance abuse disorder. There are three s 38 reports. One of those reports indicated you may have an insanity defence available. The other two concluded that you did not and there is consensus that you suffer from a long-standing mental illness. What is less clear is the nexus between that mental illness and your offending behaviour.

[7] In terms of the sentence indication I gave and I am sorry, Mr Eru, but I am doing it again because we have found that the courts are not very good at giving sentence indications to the Parole Board whereas sentencing notes always make the file so the Parole Board need to understand the methodology.

[8] In terms of the sentencing indication process, both your lawyer and the Crown were agreed that this matter is in band 2 of R v Taueki.1 There was some difference in approach as to where in band 2; the Crown suggesting a starting point of between seven and eight years with uplifts for the second charge and an uplift for previous convictions, Mr Gill had suggested a start point of six years and with appropriate credits.

[9] I have viewed the relevant sentencing purposes as accountability, the interests of the victim, denunciation, protection of the community and rehabilitation and reintegration.

[10] In terms of sentencing principles, I have regard to the gravity of the offending, this is serious violent offending with a maximum penalty of 14 years’ imprisonment, consistency of sentencing levels, the effects of the offending on the victim and imposing the least restrictive outcome.

[11] In terms of statutory aggravating features they are actual violence, use of a weapon, offending while on bail and your previous convictions.

[12] In terms of statutory mitigating factors, they are your plea and mental health issues and I had in the sentence indication indicated that this is clearly band 2 R v Taueki range of five to 10 years’ imprisonment and defined as including two or three of the aggravating factors. Here, there are three of those factors; extreme violence, serious injury and use of a weapon and I set a start point in the middle of the band so seven and a half year years.

[13] The Crown submitted, and I consider correctly, that the wounding intent to cause grievous bodily harm while itself attracts a start point of up to three years’ imprisonment, but I need to have regard to totality and I would uplift by nine months, so that is an adjusted start point of eight years and three months.

[14] An uplift of five per cent for previous convictions. In terms of credit, 25 per cent for pleas.

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

[15] I have discussed at some length in the sentence indication the appropriate credit for your mental health issues and allowed a credit of 15 per cent for that. The reason why I have not adopted a higher credit is because you have had a significant amount of resource applied to your mental health needs including the previous sentences of intensive supervision and supervision. It is not a situation where you have come before the Court having offended in a serious way labouring under a previously undiagnosed mental health condition. That got me to a net situation, 35 per cent credit and I have to say and confess now that that is where my sentence indication has gone awry because 35 per cent of eight years and three months does not get to an end-point of four years and one month.

[16] Mr Gill has filed since the sentence indication was given and accepted a further submission and a copy of a cultural report prepared at the end of 2020, which report details the paradigm case of the face of Māori prison population, which is a background of abuse, disconnection with culture, disengagement from education, all of those sorts of issues. Mr Gill submits that 15 per cent might be appropriate and I agree, which would get me to a net 50 per cent position which is still more than four years and one month’s imprisonment and what I am intending to do is to honour the sentence indication. Indeed, if I was not prepared to do that, I would have to give you an opportunity to revisit your pleas and Mr Gill does not seek to address me further in terms of the approach I am taking which is to acknowledge that you would be entitled to a further credit for those cultural report matters but acknowledge my arithmetical error which means that the indicated sentence is still an appropriate end-point.

[17] Against that background, Mr Eru, you are sentenced on this basis.

[18] On the charge of causing grievous bodily harm with intent to cause grievous bodily harm, you are sentenced to four years and one month’s imprisonment.

[19] On the charge of wounding with reckless disregard, you are sentenced to three years’ imprisonment.

[20] On the charge of assaulting the prison officer acting in the execution of his duty, you are sentenced to three months’ imprisonment.

[21] All of those sentences are concurrent. The sentence is four years and one month’s imprisonment.

Judge T M Black

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 05/07/2022