R v Hapeta [2012] NZHC 605 (23 March 2012)

High Court of New Zealand

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R v Hapeta [2012] NZHC 605 (23 March 2012)

Last Updated: 12 April 2012

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2011-083-000310 [2012] NZHC 605

THE QUEEN

v

JOSEPH PAUL HAPETA

Hearing: 23 March 2012

(Heard at Wellington)

Counsel: L C Rowe for the Crown

C Tennet for the Accused

Sentence: 23 March 2012

_{SENTENCING REMARKS OF MALLON J}

Introduction

[1] Mr Hapeta, I’m going to ask you to stand. You appear for sentencing today, having pleaded guilty to the following charges:

(a) One charge of threatening to kill[1] (maximum penalty: seven years’

imprisonment);

(b) Two charges of blackmail[2] (maximum penalty: 14 years’

imprisonment);

_{(c) Two charges of robbery}[3] _{(maximum penalty: 10 years’ imprisonment);}

R v HAPETA HC WANG CRI 2011-083-000310 [23 March 2012]

(d) One charge of threatening to damage a dwelling[4] (maximum penalty:

three years’ imprisonment);

(e) One charge of common assault[5] (maximum penalty: 1 year imprisonment);

(f) One charge of kidnapping[6] (maximum penalty: 14 years’

imprisonment);

(g) One charge of cultivation of cannabis[7] (maximum penalty: seven

years’ imprisonment).

Circumstances of offending

[2] These charges relate to a series of events that occurred between April and December 2010. It began in April 2010 when you arrived unannounced and uninvited at the rural property of a person who I will refer to as Mr F, who was

60 years old and lived alone and did not know you. You have told the probation officer that the reason you did this was that you were wanting to get your 15 year son out of Porirua because he was hanging out with “the Crypts” and you did not want him to be a gangster.

[3] Mr F’s property had a house and a separate cottage. There is a dispute about whether Mr F agreed that you could live in his cottage on the property. The summary of facts says that you informed Mr F that you would be living at the cottage at his address, and that he did not have a choice in the matter. You, however, say that it was agreed that you could move into the cottage and that you would work on the property. The Crown is content to proceed on the basis that the arrangement may have started out as you say, but you soon took advantage of Mr F and became

_{increasingly controlling and dominating.}

[4] You would arrive at Mr F’s house each morning telling him what you wanted him to do each day. You would tell him to call you “Your Honour”, and tell him that if he did not do as he was told, he was dishonouring you and you would kill him and his family. That is the basis for the threat to kill charge.

[5] One morning in September 2010 you and Mr F went to a property at the small township near his property. This property was owned by Mr B, a friend of Mr F’s. Mr B was 64 years old and lived alone. You told Mr B that you were in the Mongrel Mob and you showed him your patch. You began abusing him, threatening to kill him and burn down his house, and you claimed that the Mongrel Mob had a contract out on him. You told him that he could make it go away if he paid you

$20,000. You said that if he could not pay, you would take that amount in property from the address. These events form the basis of the first blackmail charge.

[6] The three of you then went in your van to hire a trailer. You told Mr B to pay for hiring the trailer. Mr F and Mr B felt they had no choice but to do as you said. The three of you then went to a cash machine. You told Mr B to get money from his bank account. Mr B said you were threatening and angry and he feared what you would do if he did not get any money out. Mr B withdrew $360 and you immediately took it off him. This gave rise to one of the robbery charges.

[7] The three of you then returned to Mr B’s home. You began loading a number of his belongings onto the trailer. You threatened Mr B with violence leaving him feeling powerless to stop you from taking his belongings. The items you loaded onto the trailer included a television, a number of tool cases, two electric mopeds, a stereo system, a portable CD player and a compressor. You subsequently drove away with his belongings. This gave rise to the second robbery charge.

[8] While loading the trailer, you threatened Mr B, saying that you would kill him and would burn his house down. This gave rise to the threat to damage a dwelling charge.

[9] In November 2010, you forced Mr F to sign a tenancy agreement, which said that he was required to pay you $20,000 if he ever wanted you to move out. You

stood over him while he signed. You punched him in the head and face and pushed him up against the wall. You said you would throw him over a cliff. This gave rise to the common assault charge.

[10] Later in November 2010, you threatened to burn the cottage down if Mr F backed out of the agreement. You said “This is how it will roll or your son will get the bash, and your family” or words to that effect. This gave rise to the second blackmail charge.

[11] In December 2010, you drove Mr F to [another town] so that he could get money out for you. He did not want to get in the car but was intimidated by your threats. The money was not in the account. He then went to the address of his former partner so that he could get the money. At this point, he decided not to pay the money and went to the Police. The drive to [the town] gives rise to the kidnapping charge.

[12] The charge of cannabis cultivation arose from the Police search of the cottage on Mr F’s property where you had been living. A single cannabis plant was found growing in the wardrobe of your bedroom.

[13] You told the probation officer in the pre-sentence report that Mr F had made everything up. You said that he had offered you a five-year tenancy for the work you had carried out on the property but then he decided to sell the property. You said that Mr F offered you $20,000 instead of the tenancy. You said that Mr F probably made up everything in order not to pay the $20,000.

[14] In light of your guilty pleas I have to reject what you said to the probation officer. It is not really plausible in any event.

[15] In your letter to me you say that you honestly thought that you were giving Mr F your full respect and companionship for allowing you and your son to be a part of his life in such a quiet, beautiful area to settle down but with the way things have turned out you feel that your mana has been misunderstood. There may be some truth in that. It may be that you enjoyed living at his property and it may also be that

you did not realise just how intimidating and controlling you were being with him in the period that you lived there.

[16] However the victim impact statements show just how intimidating you were. Mr F said that it was only when he spoke to his former partner that he found the strength to go to the police. He was very stressed and tearful about what had happened and he felt he needed to leave his property and the area. He sold the property at a loss and had to put his dogs down because they could not come with him. He now lives with his son. He suffered a heart attack in April 2011 which he, at least, attributes to the stress that you caused.

[17] After Mr B was approached by the police and made his complaint, he felt his only option was to leave and to go live with his family in Australia. To do that he had to leave his job as a cleaner. He did not return to New Zealand until early this year to be a witness in your trial. He has been unable to get work and he says, as he sees it, that you have ruined his life and his plans for his retirement.

Circumstances of the offender

[18] Turning to your personal circumstances, you are 41 years old. You have three children.

[19] You have had a difficult, abusive and dysfunctional upbringing. You started running away from home at age 10 and left school at the age of 13. You were in and out of boys’ homes until you started work. Years later your partner, who was the mother of one of your three children, was murdered. The drug and alcohol assessment writer indicated that, as a result of these experiences, you suffer from post-traumatic stress disorder.

[20] You have about 120 previous convictions. The Crown’s summary of those convictions is that they include 19 previous convictions for assaults or assaults with intent to injure, 10 convictions for threatening behaviour or threatening to kill, and

29 convictions for dishonesty offending, of which 7 are for fraud. Your last offending was in 2009, but going from the record of your criminal history, those

matters were all relatively minor, as small fines were imposed in respect of them. Apart from that offending your last recorded offences are in 2003. You lived in Australia between 2003 and 2008 and you say that you did not offend in Australia. The Crown has made inquiries about that and has not determined that that information is incorrect so that I am proceeding today on the basis that there is a period where you have not offended - a five year period where you have not offended. The offending, although numerous before 2003, again is not of the most serious kind. Although you have served a number of periods of imprisonment, none of them are for particularly long periods of time. The offending for which you are being sentenced today is really by far the most serious offending to date.

[21] According to your alcohol and drug assessment, you have significant drinking and drug abuse problems. The assessor considers you have been using alcohol and drugs for 30 years to self-medicate the problems arising from your upbringing. You scored very highly on the drug abuse screening test and you also meet the DSM IV criteria for poly-substance dependence (alcohol, cannabis and methamphetamine).

[22] Almost all of your offending occurred while you were under the influence of alcohol. Your family, it is said, has been reluctant to have anything to do with you because of how you act when you are under the influence of alcohol although I note that your brother is here in support of you today. You have acknowledged that you have a serious problem. You say you have attempted treatment programmes in the community but have not completed any. You also completed a programme in prison some time ago.

[23] Because of your long standing difficulties the assessor says you will need to attend a long-term treatment programme if you are to have any hope of addressing the underlying issues. You have been offered a place at Moana House, which offers a 12 month programme and which is seen by the assessor to be the most suitable programme to seek to address your issues.

[24] The offending here arose from a connected series of events. You imposed yourself upon Mr F and then his friend, Mr B, and used fear and intimidation to extract money and property from Mr B and to seek to do the same from Mr F. The two blackmail charges are the lead charge. The appropriate starting point for those charges is to be uplifted for the aggravating factors that the other offending represents to arrive at an overall starting point for the offending which reflects the totality of that offending.

[25] The Crown submits that the starting point that would reflect the totality of your offending, to give an overall starting point of four to five years imprisonment. The Crown submits that the aggravating features of your offending are as follows: that there was a deliberate and prolonged attempt to extort money and property from the victims; that the victims were older members of the community and apparently somewhat socially isolated; that you used manipulative behaviour including threats not only to harm them but also their families and to damage their property and to involve your gang associates; the sum demanded from both victims was considerable

- $20,000; cash was taken from Mr B along with a large amount of property; the demands you made were persistent; and the victims felt unable to take any action to resist your demands and have been significantly affected by the offending on them.

[26] Your counsel submits that this offending was not the worst of its kind. Your counsel notes that you tidied up the property when you were living with Mr F and says that you did in fact at times pay him some rent and that you believed you were a companion of Mr F during the period you lived there. Your counsel submits that in view of the health issues referred to in the pre-sentence report, you might not have realised how you were appearing. He submits that the offending here is more in the nature of demanding with menaces with some violence and other aggravating factors, which distinguishes the case from some of the other cases of blackmail which are viewed as particularly insidious. He submits that an appropriate starting point would be 2½ to 3 years’ imprisonment.

[27] Having reviewed the cases counsel have referred me to and some other cases as well, which will be noted in the typed sentencing remarks,[8] and acknowledging the Crown’s submission that your case was probably closest to R v Duffy and R v Rangitaawa, although there are some differences there as well. I consider that an appropriate starting point for the totality of your offending is 4 years’ imprisonment. That is towards the higher end of the blackmail cases that I have been referred to, but

in adopting that starting point I have taken into account that there were two victims. One who was subjected to your intimidation for a good part of the day and who first had cash taken off him and then significant property; the second victim was subjected to your intimidation over a lengthy period on and off and perhaps escalating towards the end of that period while you lived on his property. The amount you were seeking to obtain from him was significant. Both victims were to a degree vulnerable because of their age and living situation. That is shown by neither of them having gone to the police from the outset. Both were so fearful that they have left their homes after going to the police about you.

Personal aggravating factors

[28] I turn now to the factors personal to you. The only potentially aggravating factor is your previous convictions. However because the matters in 2009 are relatively minor, and there appears to be a considerable gap in your offending while you were in Australia, and the previous offending was not of the scale of this offending (at least going by the sentences imposed upon you for them) I do not think it is appropriate to uplift your starting point from the 4 years’ imprisonment that I

_{have taken.}

[29] The mitigating factors are your guilty pleas, your remorse and your willingness to engage in rehabilitation through being accepted for Moana House.

[30] I refer in particular to your letter to me in which you do appear to be remorseful for your offending. I acknowledge that you say you are sorry in that letter. You say you want to address your issues and better yourself for the sake of your son. All of that is positive. In this letter, you also say that you have written a letter to one of your victims, Mr F, expressing your remorse however, Mr F says he received no such letter. Also, after your letter to me you told the probation officer that Mr F had fabricated the events. This is contrary to the indications of remorse in your letter to me.

[31] Your guilty pleas came 3 weeks before the commencement of your trial. Your counsel notes that this was entered following the assessment with the drug and alcohol assessor which was held up while legal aid was approved. He also says that he was in discussion with the Crown for some months - over the last few months - before the guilty pleas were entered. The Crown notes that the guilty pleas saved the victims the ordeal of having to give evidence. The Crown submits that a 15% discount would appropriately reflect the credit you should have for the guilty pleas and your expressions of remorse and perhaps your willingness to engage in rehabilitation. I agree with that. I consider that your sentence should be reduced by

15% to reflect those matters.

Sentencing options

[32] So if I were to sentence you to imprisonment, that would be an overall sentence of three years and five months’ imprisonment.

[33] Your counsel has submitted that a sentence of intensive supervision and community detention should be imposed rather than a sentence of imprisonment. That is so you can partake in the rehabilitative programme at Moana House.

[34] In advancing this submission he says that this is not a soft sentence. He notes that your time in custody on remand equates to one-third of a sentence of three years and nine months. He refers to your motivation to change and submits that if you are to remain in prison, the door to Moana House will close. As to that, the drug and alcohol assessor says that if you remain in prison your motivation to attend is likely to be significantly diminished. He also refers to Moana House having only 13 beds and that you will lose the place which is currently available. He says that there is no guarantee that a place will be available in 12 months’ time when you might appear before the Parole Board.

[35] The Crown submits that the appropriate end sentence is too high to appropriately consider the sentence that your counsel advocates. That is, it is well above a short-term imprisonment sentence where a community-based sentence ordinarily can properly be considered. It submits that denunciation and deterrence and the protection of the community must take precedence here. It submits that ultimately it is the Parole Board that is best placed to determine the most effective programmes for you rather than for this Court to take a leap of faith on the basis of the drug and alcohol assessor’s report. It submits that if you are committed to a course such as Moana House your attendance can be managed as part of an overall release strategy assessed by the Parole Board. The Crown’s submission is supported by the probation officer who has reviewed the reports before the Parole Board in

2000. The probation officer has concerns that your propensity for violence will go untreated if you are now released straight to Moana House. The report writer believes you would benefit from completing an intensive programme such as the one held in the prison’s violent prevention unit. It is therefore submitted by the Crown that your attendance at Moana House now would be potentially putting the cart before the horse.

[36] It has been said that blackmail is an offence which attracts a sentence of imprisonment which denounces and deters and that only exceptionally is the emphasis able to be given to a sentence which rehabilitates and reintegrates. I have given this very careful consideration. I would like you to have the opportunity to address your issues. There is a real need for you to obtain the rehabilitative treatment that Moana House offers.

[37] However, notwithstanding the strong submissions that has been ably made on your behalf by your counsel, I regret to say that I am not persuaded that this is the appropriate sentence for you even taking into account the significant time you have spent in custody on remand. It is concerning that you denied the offending to the pre-sentence report writer. Your counsel has made submissions about that in terms of the way the summary of facts were drafted, and taking into account your view about how you came across and perhaps not realising quite how you came across and that there were periods probably where you were a companion. There may be something in that. However, in offending of this kind there is a need to denounce and deter and to protect the community. I consider that the Parole Board is better placed than I am to determine whether you are now ready for release to a programme such as Moana House. I realise that you may miss out on the current placement that is available to you and that is a shame. However, I do hope that you will have the chance soon to come before the Parole Board given the time you have spent in custody on remand and that when you are assessed as suitable for release there will be a place for you at Moana House.

[38] So what that means is that I am not going to adopt the approach that your counsel has advocated. I am going to impose a sentence of three years and five months’ imprisonment on each of the blackmail charges. Those sentences being concurrent. I will impose a one month concurrent sentence on the cultivation of cannabis charge and six months’ concurrent on all the other charges.

[39] No order for reparation is sought because the Crown accepts that you are not in a position now or in the near future to denote any such order. A reparation order would therefore be pointless so no order is made.

[40] I note that on the entry of your convictions on your guilty pleas you were given the warning, for a first strike warning, so I do not need to do that now.

[41] So you may stand down Mr Hapeta.

Mallon J

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[1] _{Section 306, Crimes Act 1961.}

[2] _{Sections 237(1) and 238, Crimes Act 1961.}

[3] _{Section 234, Crimes Act 1961.}
[4] _{Section 308(a), Crimes Act 1961.}

[5] _{Section 196, Crimes Act 1961.}
[6] _{Section 209, Crimes Act 1961.}
[7] Sections 9(1) and 9(2), Misuse of Drugs Act 1975.

[8] In respect of blackmail: R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005; R v Duffy & Brown HC Christchurch CRI-2009-042-2801, 15 April 2010; R v Rangitaawa & Ors HC Christchurch CRI-2004-009-14066, 11 August 2005; R v Shepherd HC Hamilton

CRI-2010-019-7285, 30 May 2011; R v Christensen-Knight HC Rotorua CRI-2010-063-4508,

13 December 2010; Currie v R [2011] NZCA 624; R v Warne [2007] NZCA 353; R v Thomas CA138/05, 6 July 2005; R v Lambert HC Auckland CRI-2005-090-7900, 20 November 2007; R v Wilkie HC Wellington CRI-2004-078-506, 17 December 2004. In respect of kidnapping: R v Duffy & Brown HC Christchurch CRI-2009-042-2801, 15 April 2010; R v Rangitaawa & Ors HC Christchurch CRI-2004-009-14066, 11 August 2005; R v MacKenzie HC Auckland

CRI-2006-057-1114, 20 March 2007; R v Geros HC Auckland CRI-2006-027-1485,

12 December 2006; Prasad v R [2010] NZCA 149. In respect of robbery: R v Mako [2000]

2 NZLR 170; Smeed v Police HC Whangarei AP50/00, 24 October 2000; Nukunuku v Police HC Napier CRI-2004-441-51, 17 December 2004; Nahona v Police HC Palmerston North

CRI-2009-454-16, 10 June 2009; Stewart v Police HC Auckland CRI-2008-404-284,

13 November 2008.