R v Hegotule [2018] NZHC 2790 (29 October 2018)

Last Updated: 9 November 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-1086 [2018] NZHC 2790

THE QUEEN

v

NYKELL-T HEGOTULE

Hearing:	29 October 2018
Counsel:	N E Copeland for Crown F P Hogan for Defendant
Judgment:	29 October 2018

SENTENCING NOTES OF WHATA J

Solicitors: Meredith Connell, Auckland

R v HEGOTULE [2018] NZHC 2790 [29 October 2018]

[1] Mr Hegotule, you face sentence on the following charges:

(a) Demanding with intent to steal;

(b) Injuring with intent to injure;

(c) Aggravated robbery;

(d) Kidnapping; and

(e) Dishonest use of a document.

[2] The lead charge is aggravated robbery with a maximum sentence of 14 years.¹

[3] As this is your second-strike offence, you must serve the entirety of the sentence.²

Facts

[4] I can state the facts of your offending briefly. In the morning of 15 January 2017, you went to a motel in Newmarket at the request of one of three co-defendants as part of a pre-planned robbery of the victim. One of those co-defendants, Ms Asia Robertson, pleaded guilty to the same or similar offending as you. Another co- defendant, Ms Goodson, was found guilty of kidnapping, demanding with intent to steal, and dishonestly using a document. The third co-defendant is yet to be tried.

[5] Soon after your arrival at the motel, you confronted the victim in the bedroom brandishing a knife and, together with the other co-defendants, demanded the victim transfer a considerable sum of money into a bank account. The money was not transferred, although the victim’s wallet was taken.

[6] At about this time, the victim tried to make his escape. As he did so, you struck him to the head, causing him to momentarily black out. The victim was then tied up

¹ Crimes Act 1961, s 235.

² Sentencing Act 2002, s 86C.

and left in the bedroom. He was clearly injured, with blood flowing from the injury caused by your blow. You then departed the premises with a co-defendant, Ms Goodson. Ms Asia Robertson, and it is alleged, the third co-defendant, then drove to several ATM machines and withdrew money using the victim’s bank cards.

[7] The victim managed to free himself and alert other motel users who then alerted the police. He suffered a fractured eye socket, a fractured nose and bruising, as well as cuts to his wrists. $2,800 was taken from his accounts.

Start point

[8] I turn now to look at a start point for your sentence. Ms Robertson has been sentenced. The Judge, in her sentencing, commenced with a start point of four and half years on the lead charge of aggravated robbery.³ The Crown submits that your culpability is higher, given your role in the physical violence. I agree in part. The totality of your offending, including the threats with a knife and the physical assault, including striking to the head, the kidnapping and the theft demand, require a stern start point.⁴ However, the evidence at trial suggested you were a late comer to a co- defendant’s plan to rob the victim that got out of control. I also do not agree with the Crown’s suggested uplift of three months for prior convictions. This factor inheres with a second-strike sentence.⁵ Ms Copeland belated sought to justify uplift on the basis that the offending occurred while subject to release conditions. For my part, the second strike outcome accommodates this factor too. A start point therefore of five years is appropriate.

[9] I then turn to your personal mitigating factors. You are still a relatively young man at 30 years of age. You have a supportive whānau. You also have six children, aged from one to 15 years. You report that there are two aspects to your view of culture; the gang culture in which you spent most of your young life as observer and eventually participant, and your Ngā Puhi culture based on tikanga values which your whānau sought to teach you. Unfortunately, as is the case for many young Māori, the lure of gang life proved more compelling.

³ R v Robertson [2018] NZHC 1557.

⁴ R v Mako [200] 2 NZLR 170 (CA).

⁵ Barnes v R [2018] NZCA 42 at [77]- [79].

[10] All of this is important for two main reasons. First, the learned anti-social behaviours from gang culture can be unlearned, particularly with the right pro-social support, in your case, from whānau and hapu. Second, you have made significant strides back toward your Ngā Puhi roots and more broadly to your rehabilitation while on remand. In this regard, you have completed several rehabilitation steps, including:

(a) Completion of a programme called the Dynamics of Whanaungatanga, which is designed to increase participant knowledge across four kaupapa – Manaakitanga, Whanaungatanga, Rangatiratanga, and Wairuatanga;

(b) Participation in The Life 101 course;

(c) Completion of a four-session alcohol and drugs programme (though you acknowledge you need more intensive programmes to combat your methamphetamine addiction);

(d) Treatment with a departmental psychologist, and you are reported as appearing insightful regarding the drivers of your offending.;

[11] You have also completed courses in numeracy and reading, heavy vehicles, health and safety, budgeting, and secure online learning. You have also remained drug- free. You report that you are motivated to change, that your children do not follow in your footsteps, and have made attempts to step back from active involvement in Black Power, though you still consider them to be your whānau. You have also indicated that you want to enhance your understanding of tikanga Māori and carry on this journey post sentencing.

[12] You also now acknowledge your role in the offending. Initially, it appears you claim you were under the influence of methamphetamine at the time, to excuse your offending. However, you have clearly signalled remorse for your behaviour and understanding of your offending as early as 18 August 2008, as noted in a psychological assessment of that date. You have also provided me with a letter recording your remorse. Finally, your aunty spoke on your behalf. She confirmed that
you come from a stable background but drifted towards gangs in your late teens. She also expressed concern about your mental health, noting that you have been struggling for some time. She also emphasised, however, that you have whānau support.

[13] You are assessed by the PAC report writer as presenting an ongoing high risk of re-offending. However, you are also commended by the PAC reporter for the efforts that you have made while on remand.

[14] I am also advised that you are prepared to engage in restorative justice.

[15] These personal factors, taken together justify a 20 per cent discount, comprising recognition of:

(a) your difficult upbringing, including exposure to gang culture, substance abuse and related violence;

(b) the steps you have taken to rehabilitate;

(c) your capacity to rehabilitate through reconnection to your Ngā Puhi roots and to your whanau;

(d) for your acknowledgment and general remorse for your wrongdoing; and

(e) for your preparedness to engage in restorative justice.

[16] In the result, a finite sentence of 4 years, is appropriate. While the Crown did not seek it, I consider than an MPI of 50 per cent is also appropriate given the seriousness of the offending and the harm caused. The principles of denunciation and deterrence are fully engaged by your offending. I note, in this regard, the victim was understandably traumatised by your offending. Among other things, he needed counselling for acute stress disorder.

[17] As noted already, this is your second-strike offending. Regrettably, you must serve the full sentence. For completeness, I have considered whether the sentence
should have been reduced still further for proportionality reasons as per Barnes. I am satisfied that, while harsh, the end sentence is not so grossly disproportionate to warrant further discount. I also accept that, unlike the facts in Barnes, the strike one offending in your case involved moderately serious indecency offending against a child in 2013.

[18] Please stand, Mr Hegotule. I impose a sentence of 4 years’ imprisonment on the lead charge of aggravated robbery.

[19] For completeness, I impose sentences of 2 years’ imprisonment on each of the other charges, to be served concurrently with the lead charge.

[20] You must, as I have said, serve this sentence without parole.

Third strike warning

[21] Given your convictions for aggravated robbery and kidnapping, you are now subject to the three strikes law.

[22] This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists these ‘serious violent offences’.

[23] If you are convicted of any serious violent offence other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.

[24] If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case, the Judge must order you to serve a minimum of at least 10 years’ imprisonment.

[25] If you are convicted of murder after this warning, then:

• (a) you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so;

(b) if the Judge finds that it is manifestly unjust to do so, then the Judge must impose a minimum sentence of at least 20 years unless that would be manifestly unjust, in which case, the Judge must sentence you to a different minimum period of imprisonment.

[26] If you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless a Judge considers that would be manifestly unjust.

[27] Mr Hegotule, please stand down.