R v Karekare [2018] NZHC 1364 (11 June 2018)

Last Updated: 15 June 2018

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2016-087-1518 [2018] NZHC 1364

THE QUEEN

v

ANARU KAREKARE

Hearing:	11 June 2018
Counsel:	H J Sheridan for Crown M Simpkins for Prisoner
Judgment:	11 June 2018

SENTENCING NOTES OF WHATA J

Solicitors: Pollett Legal, Tauranga

Lance Lawson, Rotorua

R v KAREKARE [2018] NZHC 1364 [11 June 2018]

Summary

[1] Mr Karekare, you have pleaded guilty to causing grievous bodily harm with reckless disregard. The maximum sentence for this offending is 7 years’ imprisonment. You have also pleaded guilty to conspiring to pervert the course of justice. The maximum penalty for this offending is also 7 years’ imprisonment.

[2] I must sentence you on this offending.

[3] Before I do so, I want to acknowledge the presence here today of the victim’s mother. I want to acknowledge your bravery and your generosity in permitting Mr Karekare’s family to speak to you and in allowing Mr Karekare to express his sadness to you for what he has done.

Facts

[4] Turning then to the facts of your offending, Mr Karekare. They are agreed. This is a summary.

[5] In the early morning of 1 October 2016, you were socialising and drinking alcohol on the balcony area of the Whakatane Hotel. A disagreement broke out over the allegiances you and your associates, and the victim, had to the Mongrel Mob. You and two others (Mr Matekuare and Mr Kinghazel) rushed the victim, punching him in the head, which caused him to flip backwards over the balcony rail and onto the roof below. Mr Matekuare then grabbed the victim and punched him in the head and face three times, causing him to fall back onto the roof unconscious or semiconscious. You three then climbed over the balcony rail and onto the roof where you all continued to kick and punch him.

[6] The victim then tried to crawl away. This and the continuing assaults meant the victim got closer and closer to the edge of the roof, until he fell onto the pavement below. His head and back took the full impact of the fall onto the cobblestone pavement. Members of the public immediately began to render him assistance. You
went downstairs and having been told to stay there, as the police were coming, you attacked them.

[7] The conspiracy to pervert the course of justice charges relate to phone calls between you and Mr Kinghazel in which you acknowledged your involvement in the offending, discussed assaulting Mr Matekuare who you perceived had “narked” on you, and discussed a specific witness who Mr Kinghazel said he would talk to and tell her not to make any statements. You agreed with this course of action and told Mr Kinghazel to tell the witness to blame it all on Mr Matekuare.

Victim impact statement

[8] I want to now talk briefly about the victim. He spent five weeks in an intensive care unit, where he was in a coma on life support. He suffered a severe brain injury as well as skull fractures, hip fractures, and liver laceration. His life, it appears, was in the balance. It was a harrowing time for his family. His mother took two months off work to be with him. She describes the fear her family felt that the victim might not survive. They thought they had lost him on several occasions. Slowly, however, he improved with medical staff marvelling at his physical recovery.

[9] But, as you know, Mr Karekare, he is still far from his former self. His mother describes, how prior to the incident, he was living independently, doing repair and building work in the Ohope Beach area, and expecting his first child. He now lives in a rehabilitation facility for brain damaged people and may never be able to live independently again., He struggles with his short and long-term memory. Indeed, he is unable to recall what happened to him, or explain it, even if he was able to.

[10] Your offending, Mr Karekare, has plainly been a terrible life-changing effect on the victim and his family.

Personal circumstances

[11] Turning then to your personal circumstances, unfortunately, you did not take the opportunity to engage in the preparation of a s 27 report into your background,
including your culture, and how this may have contributed to your offending and/or contribute to your rehabilitation. Nevertheless, I have heard from your mother today. She told me about the absence of your father in your early life, and the role played by your grandmother in your upbringing. She confirms that you have a strong connection to your Maori side, and that since the offending you have actively sought out opportunities to participate in marae-based activities. She also says that you have the support of your young partner and that you acknowledge the harm that you have done and have taken steps to remove the negative influences in your life.

[12] I also have the benefit of a PAC report. You are 20 years of age. You were just 18 at the time of the offending. You have no prior convictions. You are of Tuwharetoa, understand tikanga and speak Te Reo Maori, but you feel you have disconnected yourself in recent times from your culture. You would, however, like to reengage with your Maoritanga.

[13] The report also describes how you have had difficulties with your mother from time to time and that you were kicked out of home at the age of 16 for stealing and that at the time of the offending you were mixing with the wrong people. The report, however, speaks positively about the whanau support available to you. Your mother and step-father live in Kawerau and have offered their home as an address for an electronically monitored sentence. You have been with your partner for two years and although she is unhappy that you were involved in this offending, she is willing to continue to support you. You also have a four-year-old son who you have just started having access to. You have said you want to become more involved in your son’s life.

[14] You are currently employed on a casual basis as a scaffolder. Your supervisor advises that the company would continue to employ you if you received an electronically monitored sentence.

[15] You acknowledge that your lifestyle prior to your offending was poor, involving regular alcohol consumption and anti-social influences; your one goal in life was to be in the Mongrel Mob. You admitted you loved to fight and wanted to make a name for yourself. The report also notes, however, that you would only fight willing participants. You say you are not now using alcohol and do not want to become part
of a gang, and that you are not interested in using any type of illicit drug in the future. You claim since the offending you have become more responsible and your life is more settled.

[16] I also heard your words of deep remorse today. They were plainly heartfelt.

Sentences of co-offenders

[17] Before I turn to your sentence, it is necessary to consider the sentences handed down to your co-offenders.

[18] Section 8(e) of the Sentencing Act requires the Court to consider the general desirability of consistency between similar offenders. Your co-offenders were sentenced by Lang J, on 17 November 2017, following a sentencing indication.

[19] In setting the starting point for their sentences, Lang J accepted the Crown submission that the offending was at the very upper end in terms of seriousness, but found that Mr Matekuare and Mr Kinghazel did not, in fact, appreciate the likely extent of the injuries to the victim, so “stepped back from the maximum starting point of seven years’ imprisonment and selected a starting point of five and a half years imprisonment”.¹ He added a six-month uplift for Mr Kinghazel’s additional charge of perverting the course of justice.

[20] Lang J then gave 25 per cent guilty plea discounts to both Mr Matekuare and Mr Kinghazel. He gave a 20 per cent, or 15-month discount to Mr Kinghazel because of his youth (although he noted that he did this on the assumption Mr Kinghazel was 18 not 20, but was now bound by his sentencing indication remarks), as well as a further four months for remorse, and offers for restorative justice and emotional harm payments to the victim’s family.

[21] Mr Matekuare was not entitled to a discount for youth. Lang J did, however, discount by seven months to reflect remorse, offers for restorative justice, and the fact

¹ R v Kinghazel [2017] NZHC 2825 at [21].

that Mr Matekuare had sold his vehicle to fund an emotional harm payment to the victim’s family.

[22] This resulted in an end sentence of three years three months for Mr Kinghazel and three years eight months for Mr Matekuare. Both were ordered to make reparation payments.

Mr Karekare’s sentencing indication

[23] Lang J’s sentencing indication also contained an indication for you. He set the same five years six months start point, with the same six-month uplift for perverting the course of justice. He noted he would allow a 20 per cent discount for your age and lack of prior convictions. This sentencing indication was not accepted by you but you later pleaded guilty on the first day allocated for trial.

Assessment of starting point

[24] I now move to your sentence. I must have regard to the purposes and principles of sentencing set out in the Sentencing Act. In this regard, any sentence I impose must promote in you a sense of accountability, denounce your conduct and deter you and others from repeating similar offending. It is also important that the sentence ensure that you are properly held to account for the harm done. The sentence must reflect your level of culpability and the severity of the offending. I must also consider your rehabilitation, and have regard to the wider social circumstances of your offending. Your youth is another key factor to consider. I must also impose a sentence that is comparable to the sentences imposed on your co-offenders and other sentences for similar offending.

[25] In fixing sentence, I will commence with a start point reflecting the nature and severity of the offending and your culpability. I will then consider personal factors that should increase or reduce the starting point. Finally, I will apply a discount for your guilty plea.
[26] I commence by observing that your level of culpability is like your co- offenders. This was a seriously violent group assault on a victim who was basically defenceless in the face of your combined aggression. It involved repeated attacks to the head, leading the victim to fall from a significant height. This vicious attack and the subsequent fall led to irreparable harm to your victim. I therefore adopt the start point used by Lang J. I note your counsel has diligently identified several other sentences that might support a different start point.² And I accept the start point is harsh when compared to some of the sentences handed down in other cases. But I am satisfied that the starting point used by Lang J is not an unfair reflection of the severity of your offending and is within the range of starting points available to me for such offending, having regard to the guidance afford by Taueki³ and the sentences cited by the Crown and imposed in R v Pakaru⁴ and R v Sang-Yum.⁵ I therefore adopt a start point of five years six months. I also consider that, like Mr Kinghazel’s sentence, I should uplift that start point by six months for perverting the course of justice.

Provocation?

[27] Before I turn to personal mitigating factors, I must respond to your counsel’s submission that you should receive a discount because the victim called you “wanna be’s”. This submission without merit. This Court will discount sentence where there is an act of provocation. The provocation must be serious, it must be an operative cause of the offending and must remain an operative cause throughout the commission of the offence.⁶ Whatever the significance of being called “wanna be” is in your world, it was never serious enough to qualify as provocation. In short, your reaction to it was entirely disproportionate and unreasonable. I therefore afford no discount on provocation grounds.

² Hepi v Police [2013] NZHC 2690; Paraha v Police [2017] NZHC 1887.

³ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

⁴ R v Pakaru HC Hamilton CRI-2006-070-492, 29 September 2006

⁵ R v Sang-Yum [2016] NZHC 2329.

⁶ R v Taueki, above n 4, at [32].

Personal mitigating factors

[28] However, I accept that you were, in fact, reacting to being called a “wanna be”, and that this reaction reflects several facts about you – you were, at the time of the offending, a young, very immature man who had idolised violence as a means for recognition and status. Your life goal then was not only to be part of the Mongrel Mob, but one of its toughest members. You were also intoxicated, which you say is a trigger for your behaviour. You, it appears, had also lost touch with the positive influences in your life, especially your whanau.

[29] Why are these facts important? Because they provide the immediate context for your offending and a focal point for two key interrelated purposes of sentencing – the protection of the community and your rehabilitation. Change this context, and we reduce the prospect of reoffending and further harm to the community. More positively, we give you the best opportunity to lead a productive life within our community.

[30] On the other side, a lengthy prison sentence will inevitably increase your exposure to, while still young and immature, gang influence. It borders on naïve to think that sending you into a world where brutality is idolised will do anything positive for your rehabilitation. On the contrary, gang recruitment of young Maori men in prisons is a matter upon which I can take judicial notice.

[31] It is deeply regrettable that you did not actively engage in a s 27 process because that may have provided further insight into your circumstances and, equally importantly, an alternative pathway forward. Your lack of engagement, however, probably reflects your ongoing immaturity and, I suspect, a deep sense of whakama about what you have done, and a reticence about exposing yourself and your whanau to further inspection.

[32] In any event, I am satisfied, considering the comments made in the PAC report and the comments made by your mother, you should be given the earliest opportunity, as far as permissible within the sentencing framework, to reconnect to the positive
influences in your life, including your whanau and, more broadly, your Maoritanga. Most importantly, in this regard, the PAC report records seven interconnected insights:

(a) you have no previous convictions;

(b) you feel shame and embarrassment for your offending;

(c) you acknowledge that it is connected to your lifestyle, your then anti- social life goals and your propensity for violence;

(d) you no longer wish to hold onto those life goals;

(e) you have expressed remorse for your offending and shown insight into the harm you have done;

(f) you sought a restorative justice process; and

(g) you wish to reconnect to your whanau and Maoritanga.

[33] Finally, there is your offer of reparation at $3,000 at $20 a week when released. It is a further factor to be taken into account.

[34] What does this mean in terms of discount? It is easy to be sceptical about your self-reported remorse and desire for change. But there is nothing in your wider background to suggest that your violence is anything more than situational, reflecting your immaturity and antisocial influences at the time of the offending. Indeed, you have no previous convictions. I am therefore satisfied you should receive a discount comprising the following:

(a) 20 per cent for your youth and immaturity at the time of the offending. This reflects both your diminished culpability and the severity of a lengthy sentence on you;
(b) 10 per cent for your previous good character, remorse, reparation offer and preparedness to engage in restorative justice. This reflects your innate good qualities; and

(c) 5 per cent for your rehabilitation. This reflects your ownership for what you have done, your willingness and capacity for change, your strong whanau support, and the pressing need to help and encourage you to stay away from gang influence.

[35] I am fortified in taking this approach to your discounts by the leading decision of Churchward,⁷ where the Court of Appeal reduced a presumptive start point minimum sentence of 17 years imprisonment to 13 years to reflect youth and mental health issues. In your case, Mr Karekare, it is your youth and your vulnerability to gang influence on one side, together with your capacity for reconnecting to your whanau and Maoritanga on the other, that warrant a combined 35 per cent discount.

Guilty plea discount

[36] Finally, I must afford you a discount for your guilty plea. It was late. Nevertheless, it avoided trial. A modest discount of 10 per cent is sufficient.

Outcome

[37] Accordingly, from a starting point of six years or 72 months, I reduce your sentence to 47 months. With a further 10 per cent for guilty plea, your final sentence is 42 months or three years six months.

[38] I make two final observations. First, the discount for personal circumstances in this case appears generous next to the discounts afforded to your co-offender, Mr Kinghazel. But personal discounts must reflect individual circumstances in each case. My assessment is based on my assessment of those circumstances in your case, Mr Karekare. I observe, however, for completeness that Mr Kinghazel was 20, not 18, at the time of the offending and you were the youngest of the offenders. I have

⁷ Churchward v R [2011] NZCA 531.

also seen your remorse first-hand. As I think Mrs Sheridan properly accepted, it was plainly genuine.

[39] Second, the disaggregating of the guilty plea discount from the discount for personal mitigating factors results in a smaller discount than a combined 45 per cent⁸ discount (by about two months). This is a curious product of the disaggregation process mandated by R v Clifford which, with respect, does not appear to be justified by s 9, which simply treats a guilty plea as one of the mitigating factors.⁹ I am, nevertheless, satisfied that the outcome remains proportionate to the offending and your circumstances, Mr Karekare.

[40] Mr Karekare please stand. On the charge of causing grievous bodily harm with reckless disregard, I sentence you to three years six months’ imprisonment. On the conspiring to pervert the course of justice charge, I sentence you to two years’ imprisonment to be served concurrently with the lead sentence.

[41] Mr Karekare, I hope you take from this that the Court wants to see you do better for yourself. I know a sentence of imprisonment will be tough on you but I hope that you hold the course and hold on to your connections to your whanau and prove that you can follow a different path.

[42] I also impose a reparation order on the terms set out by your counsel. That is, the sum of $3,000 to be paid in weekly instalments of $20 following your release.

[43] Please stand down.

⁸ In delivering sentence, I inadvertently referred to 35 per cent.

⁹ R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].