R v Hemopo [2014] NZHC 2950 (25 November 2014)

Last Updated: 28 November 2014

ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-091-1241 [2014] NZHC 2950

THE QUEEN

v

_{RUKA TE PONO HEMOPO}

Counsel:	H K Goodhew for Crown Mr Hemopo in person V C Nisbet, Amicus Curiae
Sentence:	25 November 2014

_{SENTENCING NOTES OF THE HON JUSTICE KÓS}

[1] Mr Hemopo, you have been found guilty at trial of one count of attempted murder¹ and another of wounding with intent to cause grievous bodily harm.²

[2] In sentencing you today I will describe what you have done, the impact on your victims, your circumstances and the legal principles I must apply. Then I will consider what sentence I need to start with, based on your offending. Last, I will consider whether any considerations personal to you should make me alter the

_{starting sentence.}

¹ _{Crimes Act 1961, s 173.}

² _{Crimes Act 1961, s 188(1).}

R v HEMOPO [2014] NZHC 2950 [25 November 2014]

What you did

[3] I start with what you did.

[4] On the evening of 2 May 2013 you, the principal victim and her sister, the second victim, had all been drinking. The victims went to sleep on a mattress in the lounge of your house in Porirua. At the time, the principal victim was 20 weeks pregnant. You went to your bedroom.

[5] Later you rose and demanded cigarettes from the two victims. When they did not supply you with cigarettes, you became angry. You forced both women onto the floor. You punched them both in the head and body with closed fists. The principal victim suffered bruising to her left shoulder and head.

[6] You then left the room and returned with a hammer. You hit the second victim with the head and claw of the hammer, delivering a number of blows to her upper body and arms. You fractured her right arm and shoulder blade and injured her spine. She also suffered a deep wound to her right arm.

[7] The principal victim pleaded with you to stop. She asked to go to the toilet. When you escorted her there, the other victim escaped and called the police.

[8] This conduct forms the basis of the wounding charge.

[9] The ordeal did not stop there. You took the principal victim to the bedroom and pushed her onto the bed. You asked her if she loved you. She said she did. You replied: “I’ve gotta do it. I’ve got to kill you and I’ve got to kill me”. You then slashed her throat with a 20 cm long serrated knife. It caused a serious cut to her neck that required 15 stitches to close. You then cut your own neck. The principal victim struggled to wrestle the knife from your hand.

[10] Fortunately, the police arrived at that point. Two officers forced the door to the bedroom open. You were kneeling over the victim. You appeared to lunge at her with the knife. The taser video footage shows all of that. The officers shot you with

a taser and a pistol. You were hit by both. You fell to the floor and you were restrained.

[11] That conduct forms the basis of the attempted murder offence.

Victim impact

[12] The two victims have both provided victim impact statements. Your offending has caused them pain and ongoing suffering. They both believed you were going to kill them.

[13] The principal victim had to go to hospital to have her neck stitched. Her neck is still scarred. It is embarrassing when she goes out in public. Every time she looks in the mirror, she says, she is reminded of what you did to her.

[14] The other victim required emergency surgery and had to spend two nights in hospital. She now suffers from pain in her shoulder and loss of feeling in her elbow.

[15] Both victims have moved away from Porirua to avoid reminders of what happened when you attacked them.

Personal circumstances

[16] I turn now to your circumstances. You are 48 years old. You were born in Taranaki. You have family in both Porirua and Fielding. You are Ngati Tuwharetoa and Te Atihaunui a Pāpārangi. Your mother has written a moving letter in your support. While a mother normally will see a son’s best side, she is realistic about the problems you have had with mental health, drugs and alcohol. So are your two sisters, both of whom who have written to me also.

[17] Your life has been something of a rollercoaster. You overcame a difficult upbringing to finish school. You were a successful locksmith for some years. You also worked as a security guard. You went to university at one point to study Te Reo and law. But you struggled with depression and problems with alcohol and drugs, and dropped out. For nearly a year in 2007 you worked as a mental health advocate.

You used to play and coach a lot of sport (including rugby league, soccer and tennis). You held some labouring jobs, but were otherwise unemployed for three years prior to your offending. But with the help of a local community worker you were taking steps to start your own business, and to gain service as a Māori Warden.

[18] You have a history of mental health problems. You have been diagnosed with a persecutory delusional disorder. From 1998 onwards you suffered episodes of paranoia and delusions. You were admitted to hospital in 2000, 2001 and 2005 because of your delusions. You were treated by mental health professionals in 2010 and 2012.

[19] Your trial was much delayed as a result of your mental health issues. Between June 2013 and May 2014 you sacked (by my count) five different lawyers. In May 2014 you decided to represent yourself. Then in July 2014 you decided on the morning of trial to retain a sixth lawyer, whom you later also sacked.

[20] Your trial date had to be vacated twice. The fact you refused to engage in depth with psychiatrists necessitated lengthy remands in hospital in hospital and repeated reports. There have been at least five sets of reports prepared, including those for sentencing.

[21] In June 2014 I held you were mentally impaired for the purposes of the Criminal Procedure (Mentally Impaired Persons) Act 2003, with an intermittent delusional disorder, but that (with appropriate trial arrangements) you were fit to plead and stand trial.

[22] I will return later in this sentencing to your mental health problems. You also have some problems with alcohol abuse, you have four convictions for drunk- driving. You were undertaking counselling for stress and anger management at the time of the offending.

[23] You deny your offending. You told your pre-sentence report writer and a psychiatrist that you did not start the violence. You said you were the one who was

assaulted. Any injuries you inflicted were aimed at protecting yourself. You say you cannot see how you could have handled the situation differently.

[24] I find sentencing you today, Mr Hemopo, a particularly unhappy task. As I note later, your past criminal record is slight, and it is clear that there is a great deal of good in you – as evidenced by your community engagement. I have no doubt at all that the only reason that we are here today is the intermittent delusional disorder that you suffer, which propelled this offending.

Purposes and principles of sentencing

[25] I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.

[26] I must keep in mind the need to hold you accountable for the harm that your offending has produced. I must keep in mind also the need for you to acknowledge that harm and take responsibility for it.

[27] I need to denounce your criminal conduct. And I need to deter you and other people from committing like offences in the future.

[28] I must take into account the gravity of your offending but I must also take into account the degree of your responsibility. I must have regard to the seriousness of your offending compared to other types of offending, and the maximum penalties imposed for them. I also need to consider the general desirability of consistency in sentencing.

[29] And then the law says I must impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

Starting point

[30] In determining a starting point for your sentence, I take those principles into account.

[31] I start by considering the aggravating features of your offending. The Crown has pointed to five. They apply to both offences to different degrees.

Use of a weapon

[32] First, you used two weapons in your attack: a knife with a 20cm blade and a claw hammer. The knife was potentially lethal: you came close to killing the principal victim with it. With the claw of the hammer you tore deep into the other victim’s flesh. The use of these weapons is a serious aggravating factor.³

Extremity of violence and seriousness of injury

[33] Secondly, the violence you used was serious. You struck numerous heavy blows to the victims. It was unprovoked, having started from your pestering for cigarettes. The attack was relatively prolonged. It was only stopped by the intervention of the police. The victims suffered very serious injuries and continue to feel their impact today. I have assessed the degree of violence used and resulting serious injuries together to avoid double-counting.⁴ Together they form a serious aggravating factor.

Attack to the head

[34] Thirdly, you attacked your victims’ heads, which is extremely dangerous. You attacked both when punching them. More importantly, you chose to attack the principal victim’s throat with a knife, knowing that could easily kill her (as the jury

_{has found) intending that outcome. That is a serious aggravating factor.}⁵

³ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [31(d)].}

⁴ _{At [31(c)] and [31(a)].}

⁵ At [31(e)].

[35] Fourthly, your victims were vulnerable.⁶ They were asleep until moments before your attack. They were lying on the ground while you began assaulting them. One of them was 20 weeks’ pregnant.

Premeditation

[36] Finally, after the initial altercation, you left the room to get the hammer. You had a moment to cool off, but you renewed your attack with that weapon. Your weapon-based offending was therefore premeditated but to a minor degree.⁷

Mitigating features of the offending

[37] There are no mitigating features to your offending.

[38] You said to the pre-sentence report writer and a psychiatrist that you were provoked.⁸ The jury heard that while you were in hospital, you told a police officer the principal victim had attacked you, and cut your throat. You gave a bizarre explanation for attacking them. Both victims firmly denied the alleged rationale when it was put to them. Whether or not it is true, it is irrelevant. It cannot mitigate your actions.

[39] In your submissions to me you say you injured the victims in the course of protecting yourself from assault. That is, you acted in self-defence.⁹ In some circumstances that can be a mitigating factor but not here. At trial you explicitly chose not to argue self-defence and you chose not to give evidence. There is no

_{evidential basis on which I could find self-defence as a mitigating factor.}

⁶ _{At [31(i)].}

⁷ _{At [31(b)].}

⁸ _{At [32(a)].}

⁹ At [32(b)].

Comparable cases

[40] I now turn to legal authorities which give guidance as to a starting point for your sentence.

[41] The lead offence in this case is attempted murder. The guideline judgment for serious violent offending, R v Taueki,¹⁰ can be applied to that offence.¹¹ However an attempted murder conviction carries a finding of an intention to kill. That increases the seriousness of the offending and means that higher sentences apply.¹²

[42] Three serious aggravating features are present in relation to the lead offence: use of weapons, extreme violence and attacks to the head. A further two, vulnerability and premeditation, are present to a lesser degree. The combination of aggravating features is not so grave as to place your offending into band three of the Taueki sentencing bands.¹³

[43] Your offending is better characterised as falling at the upper end of band two, which carries a starting point of between five and ten years.¹⁴

[44] It is a more serious than R v Emery which involved a starting point of seven years on the lead charge.¹⁵

[45] It is less serious than R v Pengelly in which I took a start point of nine and a

_{half years’ imprisonment on the lead charge of attempted murder.}¹⁶

¹⁰ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

¹¹ _{Marsters v R [2011] NZCA 505 at [17]. See also R v Pengelly [2013] NZHC 527 at [35].}

¹² _{R v He CA169/05, 28 October 2005 at [29]; R v Pengelly [2013] NZHC 527 at [35].}

¹³ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [40].}

¹⁴ It is similar to the premeditated domestic assault, with the aggravation of a weapon, set out as a paradigm example of a high end band two case in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [39(c)].

¹⁵ R v Emery [2012] NZHC 391 at [10]. In that case a weapon was used (a knife) and the head was attacked (the victim was stabbed in the throat). The victim’s injuries were similar in seriousness

_{to this case. But the violence was less prolonged and intent to kill was not proven.}

¹⁶ R v Pengelly [2013] NZHC 527 at [42]. In that case a knife was also used, the head was attacked (the victim’s throat was cut), and the injuries were similar to this case. However in that case the attack was wholly premeditated, involved humiliation of the victim and took place over the course of half a day.

Conclusion

[46] I would, Mr Hemopo, have concluded that a starting point of eight years’ imprisonment was appropriate on the lead charge of attempted murder. But I must also consider your conviction for wounding the second victim.

[47] I am going to sentence you concurrently on that count.¹⁷ I would have

adopted a starting point of five years and six months’ imprisonment on that charge.¹⁸

Your sentence on the lead offence will be uplifted to reflect the totality of your offending given that I am sentencing you concurrently.¹⁹ I will uplift your sentence by six months’ imprisonment to reflect the totality of your offending.²⁰

[48] So your starting sentence will be eight years and six months’ imprisonment. That is the least restrictive outcome I can impose for this serious offending.

Personal aggravating and mitigating factors

[49] I now address factors relating to you personally, rather than the offending, that might alter the starting sentence either up or down.

Previous convictions/good character

[50] You have some minor previous convictions, most of which relate to alcohol and cannabis. You have two convictions for assault from 2009 and 2010. One was a domestic assault. You were convicted but ordered only to come up for sentence if called upon. You have not been sentenced to imprisonment before. I regard that as a

_{very significant factor.}

¹⁷ _{Sentencing Act 2002, s 84(2).}

¹⁸ See example at [37(b)] of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 – 5 years for domestic assault with a weapon without premeditation or lasting injuries. This case is more serious.

¹⁹ _{Sentencing Act 2002, s 85.}

²⁰ Compare the one year uplift from seven to eight years for less serious wounding (two stab wounds to the upper arm with no lasting effects described) in R v Emery [2012] NZHC 391 at [3] and [10].

[51] I will not uplift your sentence for previous convictions, but you are not eligible for a discount for previous good character either. But I accept that what you have done, and its gravity, is altogether out of character for you.

Remorse

[52] You say that you are remorseful for any injuries that you caused the victims. But in the same letter to the Court you say your actions were justified on the grounds of self-defence. You say it was the victims’ fault they got hurt. That is not remorse.

[53] It is difficult to work out what you believe actually happened. But the important fact is that you do not accept what the jury found: that you hit one victim with the hammer and slashed the other victim’s throat. I cannot give you a discount for remorse.

Injury as a result of arrest

[54] You were badly injured, as I have mentioned, when you were arrested. The

Crown has properly raised the issue of whether this could be a mitigating factor.

[55] In some circumstances, injuries deliberately inflicted on an offender by police after the offence can be a relevant mitigating factor.²¹

[56] This is not one of those cases. I have described already what the police saw when they broke down the bedroom door.²² You were still attacking the principal victim with a knife when you were shot. Your injuries were an unfortunate consequence of your own dangerous actions. In those circumstances no discount for injury can be given.

Mental health

_{[57] A defendant whose culpability is reduced because of a mental disorder active}

²¹ _{Browne v Police [1990] NZHC 336; (1990) 6 CRNZ 86 (HC).}

²² At [10] above.

at the time of the offending may receive a discount on their sentence.²³

[58] Until the day you were due to be sentenced originally, you refused to engage with Dr Barry-Walsh and Dr Holmes or any other psychiatrists in any depth. Despite extensive advice from Mr Nisbet, who was amicus curiae, you thought engaging might prejudice your appeal against conviction. You said you were not mentally disordered at the time of the current offending and you did not want a discount for it.

[59] When you finally agreed to engage with Dr Barry-Walsh, I adjourned your sentencing to allow a report to be prepared. You also took the opportunity at the hearing we had a couple of weeks ago to cross-examine Dr Barry-Walsh on the contents of his report. To the extent that your cross-examination was calculated to show you were not mentally impaired – until you appreciated the implications of your actions – it was perhaps misconceived. But, as a result of the hearing I have greater insight into your mental health.

[60] First, in 2000 you were diagnosed with an intermittent delusional disorder. Dr Barry-Walsh and Dr Holmes agree that you still suffer from it.

[61] Secondly, your disorder manifests itself in two ways: persecutory beliefs and jealous delusions. You hold persecutory beliefs that the police are conspiring to harm you. And you suffer from delusions concerning the behaviour of members of your extended family. I do not intend to canvas their detail here.

[62] Thirdly, your disorder is intermittent. There are periods when you become more unwell, probably in response to stress and the use of alcohol and drugs.

[63] Fourthly, having now examined your mental state in depth, Dr Barry-Walsh reports that had insanity been raised at trial, there would have been no basis to conclude you were insane at the time of your offending. I accept that insanity would have offered no defence to the charges you faced. But your mental state goes some

_{way to explaining your actions that night, and subsequently.}

²³ R v Bridger [2003] 1 NZLR 636 (CA) at [42]-[43]; E (CA689/10) v R [2010] NZCA 13, (2011)

[2010] NZCA 13; 25 CRNZ 411 at [68]- [70].

[64] Fifthly, Dr Barry-Walsh reports that your disorder contributed to your offending. Your delusions sparked the incident that led to these convictions. Combined with your perceptions of persecution, your disorder made you jealous and angry, and then violent.

[65] Sixthly, because there is a causative relationship between your disorder and your offending it decreases your culpability. You were not a rational man making a wilful choice to offend.²⁴ But as Dr Barry-Walsh points out your disorder alone does not explain your offending. Your inability to manage anger, your consumption of alcohol and your attitude to violence all contributed. But I conclude they were relatively minor factors compared to your mental state. And they cannot be wholly divorced from it in any case.

[66] I am therefore satisfied that a discount of two years’ imprisonment (or nearly

25 per cent) is appropriate in your circumstances.²⁵

Dispositive orders

[67] Without minimising what you have done, but striving to understand it, Mr Hemopo, it is clear that you are more sick than bad. I have considered whether I am able to make an order that you serve your sentence in a hospital as a special patient.²⁶ But both Dr Barry-Walsh and Dr Holmes have made clear that while you are mentally impaired, you are not currently mentally disordered.²⁷ That means I cannot commit you to a hospital. So you will be going to prison. As therapy is more

important in the long term public interest than punishment, I am unconvinced that that is the preferable course. But it is the only course open to me under the present

_legislation.

²⁴ _{E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].}

²⁵ See the example discounts ranging from 12 to 30 per cent set out in E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [71]- [88]. This case falls in the upper quartile of the range, with a strong link between the mental disorder (giving rise to persecutory ideation and jealous delusions) and offending: Edri v R [2013] NZCA 264 at [17].

²⁶ _{Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(1)(a)(i).}

²⁷ Section s 34(3).

[68] I observe that prisoners are entitled to receive all “medical treatment that is reasonably necessary”.²⁸ That includes mental health treatment. The prison Superintendent also has the power to apply to have a prisoner compulsorily assessed, if he or she has reasonable grounds to believe a prisoner is mentally disordered.²⁹

That is not the case at present. The combined effect of those obligations however is that Corrections must closely monitor your mental health during your incarceration.

[69] Dr Barry-Walsh notes that transfer to Forensic Inpatient Services and admission to hospital for assessment and treatment may be necessary and desirable prior to your eventual release.³⁰ I agree.

[70] For these reasons I direct that a copy of my sentencing notes are to be given to the Superintendent of the prison where you are to be held.

Sentence

[71] Stand please, Mr Hemopo.

[72] I now sentence you to six years and six months’ imprisonment on the count of attempted murder.

[73] On the count of wounding with intent to cause grievous bodily harm I

sentence you to four years and four months’ imprisonment.

[74] Those sentences will be served concurrently, that is at the same time. So you will serve a maximum of six years and six months in prison altogether.

[75] I also direct that your outstanding hours of community work be cancelled as requested by the probation officer.³¹

²⁸ _{Corrections Act 2004, s 75.}

²⁹ _{Mental Health (Compulsory Assessment and Treatment) Act 1992, s 45.}

³⁰ _{Under ss 45 and 46 of the Mental Health (Compulsory Assessment and Treatment) Act 2002.}

³¹ Sentencing Act 2002, s 68(3).

[76] The names and identifying particulars of the two victims will be permanently suppressed. I am satisfied that publication would cause undue hardship to them.³²

[77] Mr Hemopo I trust you will receive the therapy you need, and to which you are entitled, in prison. Get yourself sorted out there. Return to us as a decent member of the community again. When that happens will depend on the progress you make, assessed by the Parole Board.

[78] Stand down now.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington.

And to:

Mr Hemopo

_{Superintendant, Rimutaka Prison}

³² Criminal Procedure Act 2011, s 202(2)(a).