R v Epere [2014] NZHC 118 (11 February 2014)

Last Updated: 25 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-055-002642 [2014] NZHC 118

THE QUEEN

v

_{HORETA EPERE}

Hearing:	11 February 2014
Counsel:	G Kayes for the Crown V L Pomeroy for the Prisoner
Judgment:	11 February 2014

_{SENTENCING NOTES OF GILBERT J}

Solicitors: Crown Solicitors, Auckland

V L Pomeroy, Waitakere, Auckland.

R v HORETA EPERE [2014] NZHC 118 [11 February 2014]

Introduction

[1] Horeta Epere, you appear for sentence having pleaded guilty to one charge of causing grievous bodily harm with intent to do so and one charge of burglary. The maximum penalty for the grievous bodily harm charge is 14 years’ imprisonment. The burglary charge carries a maximum penalty of 10 years’ imprisonment.

Facts

[2] Shortly after midnight on 28 October 2012, you went with your mother and sister to an address where the victim was living with her partner, her 10 year old daughter and a boarder. On the way there, you and your co-offenders talked about how you were going to “smash” her. The victim had been warned by her mother that you were coming and so she and her partner barricaded the front door of the house by placing a sofa against the door. When you arrived at the address shortly before

12.30 am, you kicked at the front door and your mother yelled out “Tania, where the fuck are you? Get the fuck out. Tania, get out here, I’m going to smash you”. When the victim and her partner realised that you were going to break through the door they sought refuge in the boarder’s bedroom.

[3] The three of you smashed your way through the glass front door and went through the house looking for the victim. You found that the door to the boarder’s bedroom would not open and you then attempted to force your way through it. At this point, you took a baseball bat that you found in the house and used it to smash a hole through the bedroom door. The victim’s partner jumped out of the bedroom window and went to get help, leaving the victim and the boarder in the bedroom with the victim’s daughter.

[4] You then struck the victim two to four times with the baseball bat while she was cowering on the floor with her hands and arms shielding her head. You then passed the baseball bat to your mother, who also inflicted a number of blows to the victim.

Victim impact

[5] The victim sustained serious injuries as a result of this brutal attack. Her right elbow was dislocated and fractured. Her right knee was also fractured and she sustained a laceration on the back of her head which required stapling. She also sustained bruises and abrasions all over her body. She remained in hospital for three days after the incident.

[6] The victim continues to suffer the effects of these serious injuries. She lacks strength in her elbow and has difficulty lifting things. Her knee is still painful and she is unable to run or even cross her legs. For a long time after the incident she was unable to perform routine chores such as hanging out the washing because of her injuries which left her feeling helpless. She says that she has been unable to sleep through the night and does not feel safe in her own home. The victim’s young daughter was traumatised as a result of witnessing the savage attack on her mother and she has needed counselling.

Approach to sentencing

[7] I am required to take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. I must hold you accountable for what you have done and promote in you a sense of responsibility for this and an acknowledgement of the significant harm that you have caused. The sentence must be sufficient to denounce your conduct and deter you and others from similar violent offending.

[8] The Court of Appeal in R v Taueki¹ provided sentencing guidelines for this type of offending. I assess your offending as falling near the top of band 2 or the lower end of band 3 as set out in Taueki having regard to the following aggravating features:

(a) there was a high level of violence involved;

_{(b) a weapon was used, namely a baseball bat;}

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

(c) there were two attackers;

(d) the victim sustained serious injuries;

(e) the offending involved home invasion at night with significant force being used to gain entry; and

(f) there was some degree of premeditation in that you all spoke of “smashing” the victim on the drive to her house as the agreed summary of facts confirms.

[9] There are no mitigating features to your offending. I reject the submission that Ms Pomeroy has made on your behalf that this attack was provoked.

[10] In sentencing you today I must also have regard to the sentence imposed on your mother, who also pleaded guilty to this offending. She was also sentenced in relation to an additional burglary charge relating to the earlier incident. You were not involved in that. Venning J adopted a starting point of nine years and three months’ imprisonment for your mother’s offending.

[11] I accept your counsel’s submission that you are somewhat less culpable than your mother. She was the instigator. She enlisted your assistance in assaulting the victim. She also delivered the majority of the blows and inflicted the head injury. I note that you were 22 years of age at the time of the offending.

[12] You have 20 previous convictions including five convictions for burglary and one conviction for possessing instruments of burglary. You have no previous convictions for violent offending. I do not consider that it is necessary to apply an uplift for your previous offending.

[13] Taking all these matters into account, including your comparative youth at the time and the totality of your offending, I consider that the appropriate starting point is a term of eight years imprisonment.

Guilty plea

[14] You are entitled to some credit for your guilty plea. However, this came very late, on 18 November 2013, the morning that your trial was due to commence. The trial date had already been adjourned. It was originally set to commence on

29 October 2013.

[15] In those circumstances, I consider that a discount of 10 per cent is appropriate to recognise your guilty plea.

Final sentence

[16] Mr Epere, would you please now stand. On the charge of causing grievous bodily harm with intent to do so, I sentence you to a term of imprisonment of seven years and two months. On the charge of burglary, I sentence you to a term of imprisonment of two years. These sentences are to be served concurrently. The effective end sentence is therefore seven years, two months’ imprisonment. You may

_{stand down.}

M A Gilbert J