R V HOEER HC WHA CRI-2008-027-000660 [2009] NZHC 1035 (14 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                               CRI-2008-027-000660



                                      THE QUEEN



                                              v



                       
            STEFAN HOEER



Appearances: M B Smith and B M O'Connor for the Crown
             A B Fairley for the prisoner

Sentence:
      14 August 2009


                     SENTENCING NOTES OF PRIESTLEY J




Counsel:
M B Smith, P O Box 146, Whangarei 0140.
Fax: [phone]
A B Fairley, P O Box 1042, Whangarei, 0140. Fax: [phone]




R V HOEER HC WHA CRI-2008-027-000660 14 August
2009

[1]       Stefan Hoeer, you have been convicted of wounding with intent to cause
grievous bodily harm. That conviction follows
your guilty plea at the outset of the
trial. That crime, as you know, carries a maximum of 14 years' imprisonment.


[2]       You
were party to a sustained and premeditated attack on your victim,
Matthew Te Hira. The assault took place in March 2008, at a remand
pod at Ngawha
Prison. Both you and your victim were inmates at the time.


[3]       I am satisfied as trial judge, on the evidence,
that the attack on the victim was
directed and incited by the prisoner Poutai. Mr Poutai had the belief that his former
partner or
girlfriend had been having some form of sexual relationship with the
victim.


[4]       The assaults all took place in the victim's
cell and comprised three waves.
The first wave was carried out by the prisoner Connelly and by you. The victim was
pushed and punched.
The evidence suggests, however, that he was not seriously
injured during that wave. There is no satisfactory evidence of bleeding.
He was
seen to sit on a bench in his cell shortly thereafter. This sight irritated Poutai who
incited the second wave which involved
the prisoners Te Whata and Briggs. The
evidence of those assaults suggests that the victim was pushed to the ground and was
kicked
and stomped. Certainly blood flowed from the victim after that series of
assaults.


[5]       The third wave involved again, you
and the prisoner Te Whata. During that
wave the victim was again seriously assaulted, kicked and stomped on the ground
and was hit
over the head by you wielding an improvised weapon, being torch
batteries inside a sock.


[6]       The resulting injuries on the
victim and the long-term effect of those injuries
were serious. The Crown is not able to produce any evidence as to which specific
blows or kicks caused what damage. However, the medical evidence I heard at trial
was to the effect that on admission to Whangarei
Hospital the victim was semi-
comatose, had a perforated left ear drum, a grossly swollen face and, revealed by a
CT brain scan,
had sustained a subdural haematoma on the left side of his brain and

brain swelling which indicated severe injury. This led to
memory loss, mild to
moderate cognitive deficits and has required support and rehabilitative intervention.
In short, he is permanently
damaged and his life has changed drastically.


[7]     I have, in that brief summary, set out what is known medically of the victim.
I have also, of course, read and considered two understandably distraught victim
impact statements from the victim's two sisters
who speak vividly of the distress
caused to his whanau by what occurred to him.


[8]     I say now, Mr Hoeer, something about your
personal circumstances. You are
a 37 year old Maori male. It appears you have nine children. You have a number of
health issues.
These include a loss of hearing in your right ear and partial hearing in
your left ear. You are asthmatic. You take medication due
to water retention, which
can cause swelling.


[9]     You have said to the probation officer that you take full responsibility
for
your actions against the victim. You stated further, that you are sorry for what you
have done, but that it had been done and
you could not take it back. You also
suggested that your involvement was not gang-related. I accept that for a man of
your somewhat limited insight, this was a genuine expression of remorse
on your
part.


[10]    You have an extensive offending history dating back to November 1991.
You have convictions for violence,
the last being in June 2008. The report assesses
you as being at medium risk of re-offending, given the nature and frequency of your
past record. However, the writer of the report believes this re-offending risk is
somewhat higher given the serious nature of your
current offending. The report-
writer assesses the level of your motivation to change as being low.


[11]    I note that in 2002
you were released on parole with special conditions to
complete an anger management programme. You failed, however, to complete that
programme and re-offended and were called back to prison. In 2003 you were again
released on parole with conditions to complete a
violence prevention programme.
You completed your term of parole, so the report says, with some difficulty on your

part because
of attitudinal problems. The report-writer notes, but I do not weigh this
very highly, that you can be volatile when you do not get
what you want.


[12]   Interestingly, the report suggests, given your current offending and the
factors which suggest your risk
of re-offending is high, you should be referred to a
psychologist for assessment for suitability before being admitted to a violent
offender programme.


[13]   I say something briefly about your previous convictions. You have some 51
convictions, as I have said,
dating back to 1991.       There were, it would seem
additional convictions in Australia from which country you were deported in
1999.
The Crown in its helpful supplementary memorandum points to the fact that you
have a conviction for injury with intent to injure
in June 2008, male assaults female
at the same time, threatening to kill or to do grievous bodily harm ­ two convictions
for that
in December 2006, and again the same crime in July 2001. All of those have
been visited by short terms of imprisonment ranging from
two months up to two and
a half years.


[14]   The centre-stage for sentencing you and your co-offenders, Mr Hoeer, is the
Court
of Appeal tariff case of R v Taueki  [2005] 3 NZLR 372 which mandates
various aggravating features and prescribes three bands. There is no doubt in my
mind, having regard to Taueki paragraphs
[40]­[41] that these assaults sit inside
Band 3 where the start points are suggested as ranging from nine years to the
maximum of
14 years. Band 3 offending requires three or more aggravating features
which in combination are particularly grave. Relevant aggravating
features here are
premeditation, serious injury, the use by you of a weapon, attacking the head,
multiple offenders (spread across
three waves), the vulnerability of the victim who
although an adult was confined to a prison pod and sitting inside his cell. I accept
that his vulnerability was not as great as the vulnerability of some of the examples
given by the Court of Appeal. There is probably
present the broad description of
vigilante action in as much as Mr Poutai and those acting at his direction took the
law into their
own hands acting out of revenge. Although, Taueki headlines the
aggravating factor of "gang warfare", the description of "serious
violence
perpetrated by members of a criminal group" can in my view, be correctly seen as an

aggravating feature given that Mr
Poutai and most of the assailants were Black
Power members or associates.


[15]   There are no mitigating features relating to the
offending here. There was no
element of a proximate provocation or a brawl.


[16]   Turning to your particular situation Mr Hoeer,
I am satisfied looking at R v
Taueki [41] aggravating features, features (a), (b) and (d) for you, being the weapon,
(e), (h), (i)
and (k) are there. I note specifically that in weighing, as I have to, those
aggravating features, I am not double counting those
aggravating features which are
specified in s 9 of the Sentencing Act 2002.


[17]   The mitigating factors in your case are your
guilty plea. I note also that you
have expressed a degree of remorse. So far as your guilty plea is concerned, it is
clear that you
would have liked to have pleaded guilty at an earlier stage. You did
not, however, do so, although I accept Mr Fairley's submission
that there may have
been peer pressure from others which stopped you from doing that. Nonetheless, to
have pleaded guilty in your
situation at a much earlier stage would have been the
right thing to do. You will be getting credit for your guilty plea, but not
as much
credit as you would otherwise have got had you done that some time last year.


[18]   Mr Smith in the Crown's submissions,
suggests that I should be looking at a
start point of between 12 and 13 years and should impose a minimum term of
imprisonment under
s 86 of between half and two-thirds.


[19]   You have been well served by your counsel, Mr Fairley, Mr Hoeer. His
submissions to
me were realistic. I note his submission that the evidence which
came from one Crown witness and which was in deposition statements
that at the
end of the third wave you tried to stomp on the victim's leg is not accepted by you.
In the circumstances I do not intend
to give that factor any particular weight.


[20]   Mr Fairley accepts that your offending places you in Band 3 of Taueki. He
made,
on your instructions I suspect, submissions that I should not impose a

minimum term of imprisonment or, if I did, that I should
come down at the lower
end of the range.


[21]   I raised with your counsel at the outset of this hearing whether or not you
may
have some mild form of intellectual impairment. That comment on my part was
based on, partly what is in the pre-sentence report and
partly from my own
observations of you during the two or three days that you were in the dock. There is,
as Mr Fairley rightly points
out, no medical evidence to suggest any impairment. On
the other hand, Mr Fairley has shared with me his observations which are in
accordance with my own, that you may have difficulty in adhering to a logical
pattern of thought. In my judgment, giving the record
you have and what you did on
that day, there may be some inability on your part to really appreciate the
consequences of your violence.


[22]   If you can stand up at this
stage please.


[23]   Of the five people I am sentencing today, I regard you as being one of the
two most culpable. You were involved,
not in one attack but, in two. You alone
deployed a weapon ­ the battery filled sock, with which you hit the victim around
the head.
There were several blows. The first thwack, on the evidence, was clearly
heard across the prison yard. You are, as I have said, well
inside the third band of R
v Taueki.


[24]   In fixing a start point to reflect your culpability and the many aggravating
features
of your offending, my only cause to pause, is whether you are to some
extent intellectually impaired. As I have said, I base that
on my observations of you
in the dock at the start of the trial as presiding Judge and the irrational problems you
have with your
own highly competent counsel in those early stages. I note the pre-
sentence report recommends a psychological assessment before
any admission to a
violent offending programme.


[25]   I consider a suitable start point for you is one of 12 years' imprisonment.
From that I deduct six months to reflect my intuition that there is a degree of
impairment which makes it difficult for you to appreciate
fully the consequences of

your violent behaviour. I add to that, one year to reflect the aggravating features of
your previous
recent convictions for violent crimes and the fact that the offending
occurred whilst you were on remand. From twelve and a half
years, I consider you
are entitled to a 20 per cent discount to reflect your guilty plea, and I note that you
wanted to plead guilty
earlier, your remorse, and your realisation that you must take
responsibility for your actions. So the end sentence at which I arrive
is one of ten
years imprisonment.


[26]   I accordingly sentence you to ten years' imprisonment.


[27]   I turn now to s 86 and
in particular the purposes set out in s 86(2).
Particularly having regard to hold you accountable for the harm you did to your
victim,
both denunciation and deterrence for offending of this type, I regard the
normal one-third parole period as being insufficient. For
those reasons I intend to
impose on you a minimum term of imprisonment of five years and three months.


[28]   I also recommend
that there be a full psychiatric and physical assessment of
you whilst you are in prison. It seems to me that a man of your age,
Mr Hoeer,
should be in a position to benefit from the courses available to you inside. I also
recommend for the Parole Board, when
they consider your eligibility for parole, that
they should give close attention to whether you have adequate insight and the ability
on release, to control your violence.


[29]   Take him down.




                                                         .............................................
                                                                                    Priestley J