R v BREEN MAKIRI [2021] NZHC 1701

R v BREEN MAKIRI [2021] NZHC 1701 [8 July 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-063-002406[2021] NZHC 1701THE QUEENvBREEN MAKIRIHearing: 8 July 2021Appearances: A McConachy for the Crown M Dorset for the DefendantJudgment: 8 July 2021(ORAL) SENTENCING REMARKS OF WALKER J[1] Breen Makiri, you appear today for sentence. You have pleaded guilty to the attempted murder of your adult son, Breen Joseph Paul Makiri, and wounding with reckless disregard Sabrina Wihapi. Both charges arise from an incident which took place in August 2020.[2] I intend to keep my sentencing remarks today very brief. This is because the material I have read indicates that you have trouble concentrating for any length of time. A communication assistant is here today to help you understand my remarks for that reason.[3] On 18 February 2021 at the request of your lawyer, Ms Dorset, I gave you a sentencing indication.1 You accepted that indication and pleaded guilty. Convictions have been entered and a first strike warning delivered to you. A copy of that indication, which sets out the facts, will be attached to the sentencing remarks I deliver today. I am not going to repeat the facts or the reasons why I came to a starting point for your sentence of eight years and six months' imprisonment. The only thing that I will say is that I acknowledged in those remarks that your actions which led you here today were the end result of a violent argument with your son; that your son in a drunken state punched you first, began overturning furniture in your home and threatening to throw the television set after you asked him to leave. You then launched a frenzied attack, stabbing your son at least 12 times and striking Ms Wihapi when she intervened to stop you.[4] My task today is to hand down your final sentence. The accepted approach to sentencing has two stages. The first stage involves identifying a starting point for your offending. I did that in my sentencing indication. I said then that the indication would be subject to adjustment if further material was provided to me about your personal circumstances and background. The second stage of the sentencing process, and the focus of today's hearing, is to adjust that starting point to reflect those features which are personal to you, Mr Makiri.21 R v Makiri [2021] NZHC 216 [Sentencing Indication].2 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.[5] I must also consider whether it is necessary to impose a minimum period of imprisonment before you can be eligible for parole. 3Impact on the victims[6] I turn first to the victim impact statement from your son, Breen Makiri Jr. Your son explains that he has talked to you since these events, that he still loves you, but no longer cares what happens to you and no longer wants anything to do with you. He says that he remains in physical pain because of the wounds he suffered. He no longer feels safe leaving the house. He wants to stay at home, alone. He finds comfort only in alcohol. It is clear, in short, that he is both physically and emotionally scarred. This is something which you also have to bear for the rest of your life.[7] You expressed willingness to meet with your son in a restorative justice setting. Just before a scheduled conference between the two of you, your son indicated he did not wish to join the conference. He wants instead to move on with his life. That is unsurprising but I do acknowledge your efforts to meet with your son to try to make peace with him.[8] I also refer to the physical harm to Ms Wihapi when she intervened to stop the assault, which resulted in her losing a significant amount of flesh from her shoulder. She has not given a victim impact statement. As I said before, her intervention very likely saved your son's life. 4[9] I will now briefly discuss your personal circumstances. This is necessary to determine what uplifts or discounts are appropriate to the starting point of eight years and six months.Personal circumstances[10] I have had the benefit of many reports. They are comprehensive and consistent. I have considered the pre-sentence advice from the Department of Corrections; a3 Sentencing Act 2002, s 86.4 Sentencing Indication, above n 1, at [9].report regarding your personal, family, and cultural circumstances; 5 a report concerning the restorative justice processes referred to; and the results of a psychological assessment.6 I will not set out these materials in detail as it is not necessary for the purposes of this hearing. Instead I will refer to the material which I consider to be the most important for the purposes of imposing an end sentence.Department of Corrections' pre-sentence advice[11] The author of the pre-sentence report notes your criminal history between 1977 and 2001, including for family violence. I regard these as historic, or old, so that it [is] not necessary to consider an uplift to your sentence. The author also notes that you told them [that you] intended to vacate your guilty plea after a change of heart. That raised some concerns about your attitude and potential lack of insight towards this offending.[12] You said that you witnessed a lot of violence growing up, albeit not in your own home. In the report writer's view, violence has long been normalised for you as a means of dealing with others. You said "I never looked at my anger, I don't see it as a problem" and that "I've kept it in order". Those and other similar statements raise a concern about the risk you pose to others. However, there is important context and background which I now address. It is that context which I have found most material to my assessment.Psychological assessment[13] In 1990 you were severely beaten by a group of assailants. This changed your life for the worse. I accept that the injury you suffered and the lack of rehabilitation has affected everything in your life since, including the offending at issue.[14] The details of this injury, and its lasting impacts on you, are explored in a comprehensive psychological report that has been prepared at your lawyer's request by a registered clinical psychologist.5 This report was prepared pursuant to s 27 of the Sentencing Act.6 This assessment was conducted pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The desirability of such an assessment was highlighted by reference in earlier- available materials to you having suffered a severe traumatic head injury in 1990.[15] The assault left you unconscious and paralysed, in a coma for six days after the incident, and then on a breathing tube for two weeks. You spent a month in hospital and were meant to receive outpatient support. Due to your state of mind and a lack of support, you did not engage. The records available from this time record some concern about your lack of anger control and increased levels of aggression because of your injury. You failed to engage in the significant rehabilitative support which was recommended to help you recover. I expect this was not your own doing. It appears to me that you lacked sufficient support around you to ensure that you did what was needed.[16] Since the head injury, you report having poor memory, poor concentration, balance, and you struggle to control your emotions. The psychologist considers those symptoms consistent with an injury of the kind described and the medical records also support your story.[17] You are 62 years old, of Ngāpuhi descent, having whakapapa to a marae inHokianga. But you say you have limited connection to the marae because you were born in Auckland and raised in Murupara. It appears that you grew up without theinherent value system of te ao Māori although your family were more connected. Youdescribed your childhood as ordinary, noting that your mother was a devoted home maker and that you and your eight siblings had a happy upbringing, and continue to enjoy good relationships. There was no physical or sexual violence, nor drug use, in the household.[18] You left school at 13 or 14, beginning to work with your father in forestry work. This led, until your head injury, to employment in a number of places, sometimes for years at a time. At the same time however, you refer to having become involved in the Tribesmen gang. Since your head injury, you have been on an invalid's benefit owing to difficulties which make obtaining and keeping employment difficult. Your relationship with the mother of your three children was apparently strained even before the injury. Tensions increased afterwards, leading to your arrest in 1992 on family violence charges. Your living situation has been turbulent and unsettled since that time. Sadly, your partner of a number of years died while you have been on remand.Your father also passed away during your time in custody, and I acknowledge your grief in respect of both of them.[19] The psychologist agrees with a diagnosis of a disorder directly linked to, and caused by, your traumatic head injury, rather than any underlying mental health disorder.7 She advises that cognitive impairments, memory deficits, mood swings, and impulsive anger and rage, are frequently seen in persons with such a disorder. Your poor engagement with medical treatment in the community, and drug use, will have worsened any violent tendencies.[20] Importantly, the psychologist does not expressly draw a link between these diagnoses and the attempted murder itself. She does note that you told her that, having become enraged during the argument, after your son punched you, you entered a state of mind which you described as "concussed, blacked out". You said that this "felt like I was back when I was assaulted". You said that this type of 'blackout' is something you had experienced from time to time since the head injury.[21] Even setting to one side this self-reporting it is clear from the s 38 report that the effect of your traumatic brain injury is an inability to control emotions, over- sensitivity to noise and sudden explosions of rage. That is consistent with the summary of facts you have accepted.Section 27 report[22] Mr Makiri, I will also briefly address the report regarding your personal, family, and cultural circumstances that has been prepared pursuant to s 27 of the Sentencing Act. The report runs to 16 pages. It addresses your life history and upbringing, covering similar ground to the psychological assessment. In particular, the writer notes that your exposure to criminal activity during your teenage years normalised destructive and violent behaviour in your mind. The report writer also suggests you will have been less able to meet the challenges you have faced since7 The diagnosis is organic personality disorder.being assaulted in 1990 due to the systemic aspects of cultural deprivation you have suffered throughout your life.8Uplift for personal circumstances[23] In my sentencing indication, I suggested there was no basis for an uplift in respect of your personal circumstances.9 That remains the position. There will be no uplift to your sentence.[24] The question is then what further discounts are required in addition to the 15 per cent discount already indicated in respect of your guilty pleas.Discount for personal circumstances[25] From the available material, the matter that bears most obviously on your culpability for the offending is the impact of your traumatic brain injury. I am satisfied that this renders you more prone to explosive outbursts of anger, makes you overly sensitive to noise and less able to reason through and control those reactions. This reduces your culpability for the offending. 10 I see that the stressful circumstances in which your son was living with you, a simmering resentment of the impact on your life and well-being, the provocation from the playing of loud music, drinking and what you have described as "disrespectful behaviour" was something of a perfect storm for someone with reduced tolerance to frustration and lack of impulse control. This does not excuse what you did but it explains your violent overreaction.[26] It also makes less relevant the purpose of deterrence in sentencing. 118 The report addresses more fully the proximity to gang membership and crime that Mr Makiriexperienced in his youth, his lack of connection to te ao Māori, and the economic deprivation rifein his local community, worsened still by the shrinking of the forestry sector in the region during his teenage years.9 I accepted that your history of violent offending is now already considerably dated, demonstrating that you had until the attempt on your son's life turned your life around, such that I identified any uplift for prior offending would be inappropriate double-punishment.10 Mental disorders (whether in the nature of intellectual disability or psychiatric illness, see for example R v M [2008] NZCA 148) not amounting to exculpatory insanity but that are nonetheless contributory to offending are accepted as mitigating an offender's moral culpability in respect of that offence, given it was not therefore, the product of a rational choice to offend. See Zhang v R[2019] NZCA 507, [2019] 3 NZLR 648 at [138]; E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70]; Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50]; and Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37.11 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70(c)]. Again, the notion that the[27] On the material before me, Mr Makiri, it is clear that you did have the benefit of a prosocial and supportive upbringing. I accept that, during your teenage years and early adulthood, you would have been exposed to widely prevalent street violence. Your closeness to gang members and obvious pressure to join the gang that dominated your social group has no doubt impacted your view of the world.[28] Although I acknowledge that your life has not been an easy one, I accept the Crown's submission that there is no clear demonstrative connection or nexus between the matters identified in the cultural report and the offending except in one respect. I accept that your rehabilitation after your brain injury was prevented by your social, economic and living environment. These were products of the factors set out in the cultural report.[29] I have also considered the impact of your age and impairment in terms of whether imprisonment would be disproportionately severe for you. There are factors going both ways identified in the reports. Your circumstances are very different from those in the cases cited to me but a modest discount on this ground alone is warranted. 12[30] Taking all of these considerations into account, I consider a discount of 20 per cent appropriate to reflect the lasting impact of your traumatic brain injury, cultural factors and particular vulnerabilities in prison. Which, together with your guilty plea discount means a total discount of 35 per cent.Remorse, rehabilitation, and participation in restorative justice[31] I do not consider that a discrete discount in respect of remorse, in addition to these discounts, is available. As noted, it is clear that you still consider yourself, to a considerable extent, the victim in this matter, lacking insight into the fact that your son's initial punch and behaviour in no way excuses your own actions.imposition of punishment has a deterrent effect on an individual assumes their offending is the product of a rational choice to offend, such that a stern response to past offending can, the logic goes, deter the offender from making a willed choice to offend in future. Where however an individual's offending was not the product of a rational choice, the use of incarceration as a tool of specific deterrence is irrational. It also makes using the offender as an example for purposes of general deterrence less apt.12 See Pauling v R [2019] NZHC 1929; and M (CA91/2012) v R [2013] NZCA 325.[32] The same must be said of your offer to participate in restorative justice. An offer to engage in restorative justice in this sense must be taken into account in sentencing. 13 But, here, where that process did not complete, its relevance is to the Court's assessment of your motivation and capacity to rehabilitate. For the reasons just noted, my assessment here is guarded. But I am optimistic that with the right intervention and support, and assuming you remain willing to engage, you can rehabilitate.End sentence[33] Applying these discounts together produces an end sentence of five years and six months' imprisonment.Minimum period of imprisonment[34] By default then, Mr Makiri, you will be eligible for parole after serving one third of your sentence. 14 Release at that date is by no means guaranteed, it would depend on the Parole Board's assessment. An uninformed observer might well consider that to be an unacceptably short sentence, given the seriousness of the offending and your currently limited insight.[35] The Crown does not seek a minimum period. I have myself considered whether it is necessary to make an order under s 86 of the Sentencing Act for a longer non-parole period. By law, this can be up to two-thirds of the full term of the sentence. 15 The question is whether I can be satisfied that the default one-third non- parole period is insufficient for any of the purposes of holding you accountable for the harm done to the community, denouncing your conduct, deterring you or others from similar offending in future, and the protection of the community.16[36] As I have said, seeking to deter you from reoffending by lengthening your sentence would be irrational, and making an example of you for purposes of general13 Sentencing Act, ss 8(j) and 10.14 Parole Act 2002, s 84(1).15 Sentencing Act, s 86(4)(a).16 Section 86(2).deterrence would be cruel, given your condition. It is therefore not, in my assessment, appropriate to make an order to further those purposes.[37] On the other hand, it is also acknowledged that, for the same reasons, considerations of public protection can be very important in cases such as this, 17 where a disorder means there is a clear risk of reoffending. 18 On the available reports, it is clear to me that you are more likely to benefit from interventions aimed at stabilising your mood by perhaps introducing appropriate medication and lessening your dependence on cannabis. You have in the past expressed an interest in doing so but have not been able to do that in the community.[38] There is of course no guarantee that you would be released after reaching your parole eligibility date. These are all very much concerns that the Parole Board can have proper regard to in determining whether you should in fact be released. On balance, I consider that they, that is the Parole Board, are better placed to evaluate when exactly in your sentence your release will be consistent with public safety concerns, therefore, I make no order under s 86. That means I make no order for a minimum period of imprisonment.Sentence[39] Mr Makiri, please stand.[40] On the charge of attempted murder, I sentence you to a term of imprisonment of five years and six months.[41] On the charge of wounding with reckless disregard, I sentence you to a term of imprisonment of 12 months, to be served concurrently, meaning at the same time.[42] To be clear then, your effective end sentence is one of five years and six months' imprisonment.17 R v Wright [2001] 3 NZLR 22 (CA) at [22].18 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [69].[43] There will be a need for tailored special conditions on release to help you integrate back into the community. Again, I consider the Parole Board best placed to make those assessments. It will depend on the programmes you have undertaken in prison. I do hope that you take advantage of what may be on offer. You have shown positive signs of doing so already.[44] Although I have already made such a direction, for the avoidance of doubt, I direct that the psychologist's report prepared for sentencing be provided to the Department of Corrections' medical staff to help with your support and treatment.[45] Mr Makiri, please stand down............................................................. Walker J