HEKE V R [2016] NZCA 38

HEKE V R [2016] NZCA 38 [1 March 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA415/2015[2016] NZCA 38BETWEEN OWEN JAMES HEKEAppellantAND THE QUEENRespondentHearing: 15 February 2016Court: Stevens, Simon France and Ellis JJCounsel: G A Walsh for AppellantM L Wong for RespondentJudgment: 1 March 2016 at 3.00 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)Introduction[1] Mr Heke was found guilty at trial of one charge of kidnapping and one charge of threatening to kill. On the morning of trial he had pleaded guilty to charges of male assaults female and breaching a protection order. He was sentenced in the Hamilton District Court by Judge Burnett to three years' imprisonment.1 Mr Heke appeals against this sentence on the grounds that it was manifestly excessive.1 R v Heke DC Hamilton CRI-2014-019-2325, 22 July 2015. Judge Burnett also imposed a minimum period of imprisonment of 55 per cent but that is not independently in issue in the appeal.Background[2] Mr Heke and the victim had previously been in a domestic relationship. The victim had obtained a protection order against Mr Heke in November 2012.[3] On 26 April 2014 the victim was staying at her grandfather's house. In the early hours of the morning, Mr Heke broke into the house and entered the victim'sbedroom, waking her. He was intoxicated, angry and abusive. She told him to leave, repeatedly, as did her grandfather who came to her aid. Mr Heke demanded the victim leave the house with him. When she refused, he grabbed her by the hair and dragged her down a set of stairs towards the front door. He pushed and shoved her. She was screaming and crying. He threatened to kill her. Mr Heke stopped only when the victim's grandfather called the police.District Court sentencing[4] Judge Burnett took the kidnapping and threatening to kill as the lead charges. She noted both the absence of guideline judgments and the Court of Appeal's observation that threatening to kill is an area in which the aggravating features relevant to the particular offence can take on real significance, which they did in Mr Heke's case.2[5] The Judge then identified the following aggravating factors of Mr Heke'soffending: actual and threatened violence, premeditation, uninvited entry into a house in the early hours of the morning, and a vulnerable victim who was asleep. With reference to other authorities, she adopted a starting point of two years and four months' imprisonment, and applied an eight month uplift for Mr Heke's previous convictions.[6] The Judge declined any discount for the guilty pleas because she consideredthat they neither reflected nor acknowledged the true extent of Mr Heke'sculpability. Rather, she noted, the pleas were entered on the morning of trial in an attempt to minimise responsibility.2 At [13], referring to R v Chiyabi [2008] NZCA 10.[7] After considering the pre-sentence report, Judge Burnett declined to give any discount for remorse or motivation to change. The report said that Mr Heke was a recidivist offender, with numerous offences committed against the same victim and that he had an emerging, but still limited, insight into his offending. The report urged a degree of caution in relation to Mr Heke's stated motivation to change, noting his absence of remorse and arrogance at trial, and concluded that he was at high risk of harm to others and at high risk of reoffending.[8] The result was an end sentence of three years' imprisonment for kidnapping and threatening to kill with concurrent terms of fourteen months for the male assaults female and breach of protection order charges.The appeal[9] Mr Heke's appeal was advanced on the grounds that the starting point and uplift for prior convictions were too high, and that some credit ought to have been applied for mitigating factors. Mr Walsh submitted that the Judge should have adopted a starting point of two years, applied an uplift of no greater than six months, and then allowed a reduction of two to three months, giving an end sentence of between two years and three months' and two years and four months' imprisonment.Discussion[10] In R v Wharton, this Court observed that "[t]here can be an infinite variety ofcircumstances which underlie the crime of kidnapping" and that cases involving "aformer spouse who defies a protection order and detains a fearful, often battered and helpless female ex-partner for motives of power, revenge, jealousy or irrationalanger" are becoming more common and are no less serious than other types ofkidnapping.3 The Courts' recognition of the particular need for deterrence,denunciation and protection in such cases has, if anything, increased in the 12 years since that case was decided.[11] We agree with Judge Burnett that there were particular features of Mr Heke'soffending that warranted a stern sentence. There was necessarily a degree of3 R v Wharton (2003) 20 CRNZ 109 (CA) at [11].premeditation. The offending involved a home invasion in the early hours of the morning; the victim was woken from her sleep and was verbally and physically abused. Mr Heke, as he had done previously, threatened to kill her. Given the 14 year maximum available sentence for kidnapping, a starting point of two years and four months was well within the available range. If anything, the authoritiescited on Mr Heke's behalf support that conclusion.4[12] Similarly, we consider the Judge was right to apply an uplift of eight months to reflect the appellant's history of offending. It is Mr Heke's repeat offending since 2010 against the same victim that particularly warrants such an uplift, rather than the mere existence of an extensive list of previous convictions.5[13] As to the guilty pleas, the Supreme Court in Hessell v R emphasised that all the circumstances in which the plea was entered must be addressed, not merely the timing.6 Here, Mr Heke's pleas cannot be properly regarded as reflecting anacceptance of responsibility for the full nature and extent of his offending. As the Judge said, they appear to have been based on a "very narrow acceptance of shoving the victim away" and were "an attempt to minimise responsibility".7 Nor did they preclude the need for, or materially shorten, the trial. We agree with Judge Burnett'sobservations that the pre-sentence report was "largely negative and makes for cautionary reading" and that Mr Heke "did not articulate remorse or victim empathy".8 These were consistent with her own experience of Mr Heke during the trial. We can discern no error in her analysis or approach.Decision[14] The sentence was well within the range available to the Judge. The starting point was orthodox in light of the relevant authorities, the uplift was warranted given Mr Heke's history of offending against the same victim, and nothing about Mr Heke's circumstances demanded a discount.4 See R v Hayes CA171/06, 20 July 2006; Moffatt v R [2015] NZHC 107; R v Davis HC Hamilton CRI-2009-019-6062, 15 September 2009.5 The relevant prior convictions involving the present victim are two for breaches of a protection order, six for male assaults female and one of threatening to kill.6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70] and [74].7 R v Heke, above n 1, at [24].8 At [8] and [10].[15] We dismiss the appeal accordingly.Solicitors:Crown Law Office, Wellington for Respondent