Ekeroma v R

• Jurisdiction: New Zealand
• Judge: Venning J
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] NZCA 250
• Docket Number: CA493/2020
• Court: Court of Appeal

Between

Don Ekeroma

Appellant

and

The Queen

Respondent

[2021] NZCA 250

Court:

Goddard, Venning and Peters JJ

CA493/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of 10 years imprisonment with a minimum period of imprisonment of 40 percent for aggravated robbery and manslaughter — drug addiction — sentencing relevance of non-causative addiction — guilty plea — time spent on restrictive bail terms — sufficient credit for personal circumstances — Criminal Procedure Act 2011 — Sentencing Act 2002

Counsel:

L B Cordwell for Appellant

J A Eng for Respondent

• A An extension of time to bring the appeal is granted.

• B The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Venning J)

1 On 11 December 2018, Don Ekeroma and an associate, Benny Fatu, broke into Shannon Baker's home. They severely beat and robbed Mr Baker. They left him face down on a mattress, “hog-tied”, with a pair of shorts tied over his nose and mouth. Mr Baker died as a result.

2 Following a jury trial, Mr Ekeroma and Mr Fatu were found guilty of aggravated robbery and manslaughter. Jagose J sentenced Mr Ekeroma to 10 years' imprisonment, with a minimum period of imprisonment (MPI) of 40 per cent. 1 Mr Ekeroma appeals against the sentence.

3 Mr Ekeroma's appeal was filed four working days out of time. The delay is minor, and has not caused any prejudice. The Crown does not oppose an extension of time. We grant an extension of time to bring this appeal.

Background

4 Mr Ekeroma and his co-accused, Mr Fatu, were both methamphetamine users. They planned to target Mr Baker for methamphetamine and money. They entered Mr Baker's home late at night, violently assaulted Mr Baker, and took a quantity of methamphetamine, a wallet containing $600 in cash, and car keys. In the course of the aggravated robbery, they administered a severe beating to Mr Baker, during which he sustained 26 abrasions, eight contusions, and facial injuries consistent with multiple significant blunt force impact. Mr Baker suffered a fractured nose, and a fractured left eye socket. The impact to his eye socket ruptured his left eyeball, permanently blinding him in that eye. The pathologist described the force required to inflict these injuries as quite significant.

5 Mr Ekeroma and Mr Fatu left Mr Baker face down on a bed in a prone and “hog-tied” position. They had placed a pair of shorts on his face, securing them using a shoe-lace. The shorts most likely covered his nose and mouth. A portion of the shorts became saturated with fluid. The pathologist considered that if the portion had been covering Mr Baker's mouth it would have made his breathing more difficult; if it was inside his mouth it would have contributed to his asphyxiation.

High Court sentence

6 The Judge took a starting point of 12 years' imprisonment for sentence. He considered, but did not apply, an uplift for Mr Ekeroma's previous convictions for

violence. The Judge then assessed the discount for mitigating factors in the round. He took into account Mr Ekeroma's offer at a relatively early stage to plead guilty to manslaughter, his letters in which he accepted responsibility for the consequences of his actions and the fact Mr Ekeroma had spent nearly one year on electronically-monitored bail (EM bail) with only two minor breaches. In the round the Judge allowed a 16⅔ per cent reduction for those considerations to arrive at the end sentence of 10 years' imprisonment. He then imposed an MPI of 40 per cent as he considered a release after one-third of his sentence would be an inadequate response to Mr Ekeroma's violent offending which had caused Mr Baker's death

Submissions on appeal

7 Mr Cordwell, counsel for Mr Ekeroma, confirmed that Mr Ekeroma took no issue with the starting point of 12 years nor with the imposition of the 40 per cent MPI. His focus was on the Judge's approach to Mr Ekeroma's mitigating factors.

8 Mr Cordwell submitted the Judge fell into error and failed to give Mr Ekeroma sufficient credit for his personal circumstances.

9 Mr Cordwell also submitted that the offer to plead guilty to manslaughter and his responsible approach to the trial process on its own would have supported a reduction of 16 per cent (or perhaps even more).

10 Next, Mr Cordwell submitted that a further reduction of five per cent should have been given for Mr Ekeroma's attempts at rehabilitation. He referred in particular to the courses undertaken by Mr Ekeroma, including the Man Up course he had undertaken while on EM bail.

11 Mr Cordwell also submitted that a further five per cent should have been allocated for Mr Ekeroma's remorse.

12 He also submitted that the sentence should have been further reduced by 10 per cent to take account of Mr Ekeroma's addiction to methamphetamine which was a contributing factor to his offending.

13 Finally, he submitted that a discount of three to four per cent should have been allowed for the almost 12 months Mr Ekeroma spent on EM bail (with a 24-hour curfew). 2

14 Aggregating those mitigating factors, but recognising the need for the final sentence to reflect the seriousness of the offending in this case, Mr Cordwell arrived at a figure of 30 to 35 per cent as being the appropriate reduction from the starting point. That would have led to an end sentence of seven and a half to eight and a half years' imprisonment. Mr Cordwell submitted that the sentence of 10 years' imprisonment imposed by the Judge was in error. It should be quashed and replaced with a sentence of eight and a half years' imprisonment.

Decision

15 Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if this Court is satisfied that there is an error in the sentence and a different sentence should be imposed.

16 This Court has, however, confirmed that an appellate court does not start afresh nor simply substitute its own opinion. It must be shown that there was an error which requires the imposition of a different sentence. The focus is on whether the sentence imposed is within range rather than the process by which it has been reached. 3 That said, it is important for the sentencing Judge to set out the process by which the sentence has been reached: in this case, we would have been assisted by a breakdown of the overall discount of 16⅔ per cent allowed by the Judge.

The offer to plead guilty to manslaughter

17 The Judge took into account the offer to plead guilty and the responsible approach taken by Mr Cordwell on Mr Ekeroma's behalf at trial in arriving at his final sentence. Mr Cordwell argues that the Judge did not give sufficient credit for the offer.

18 Mr Cordwell submitted that the offer to plead guilty itself warranted the 15 per cent discount he argued for. A discount at that level would have been at the upper end of the appropriate range in this case. The Crown case against Mr Ekeroma and Mr Fatu in relation to the aggravated robbery and manslaughter was overwhelming. The Supreme Court has confirmed that the strength of the prosecution case is a relevant factor: a guilty plea merits less recognition where conviction was inevitable. 4 We consider that a discount in the range of 10 per cent to 15 per cent would have been appropriate on the facts of this case, to recognise Mr Ekeroma's offer to plead to manslaughter and his counsel's responsible approach to the trial process.

Rehabilitation and reintegration

19 Mr Cordwell next emphasised the steps Mr Ekeroma had taken to rehabilitate himself. Mr Cordwell referred to the report requested under s 27 of the Sentencing Act 2002 and submitted that it disclosed Mr Ekeroma's desire to turn his life around. He also referred to the certificates Mr Ekeroma had obtained for his participation in various rehabilitative programmes and particularly emphasised his completion of the Man Up course while on EM bail.

20 We acknowledge that Mr Ekeroma has undertaken rehabilitation programmes since his arrest. His attempts at rehabilitation will be particularly relevant in relation to parole. For the purposes of sentencing in this case, they must be considered in the context of his past record and the circumstances of his present offending.

21 Although the Judge did not express himself this way, he would have been entitled to take the view that, in Mr Ekeroma's case, the purposes of denunciation and deterrence outweighed considerations of his rehabilitation and reintegration. This is particularly so, given the nature of the offending against Mr Baker and the length of time before Mr Ekeroma will be eligible for parole.

22 A discount of five per cent could have been justified by reference to the steps taken by Mr Ekeroma to rehabilitate himself. But it was also open to the Judge to proceed on the basis that no additional discount was required.

Remorse

23 Mr Ekeroma offered to attend a restorative justice conference. He also wrote two letters to the Court. In the first he expressed sorrow for the harm he had caused and the horrific way Mr Baker had “passed away”. But this is to be contrasted with the...