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R v Kimber HC Rotorua CRI-2003-070-6113 [2005] NZHC 1228 (17 June 2005)

Last Updated: 24 February 2019

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2003-070-6113

THE QUEEN

v

MARK GREGORY KIMBER BENJAMIN SIOUSE MARTIN SCOTT IAN MCARTHUR REGAN BLAIR WALLING

Hearing: 7-11 and 14-17 February 2005 Appearances: G C Hollister-Jones together with
D J McWlliam for the Crown
P G Mabey, QC, for the Prisoners Kimber and Walling C G Tuck for the Prisoner Martin
P J Kaye for the Prisoner McArthur Judgment: 17 June 2005

SENTENCE OF FRATER J

Solicitors: Ronayne Hollister-Jones Lellman P O Box 13063 Tauranga for the Crown

P G Mabey QC P O Box 13199 Tauranga for the Prisoners Kimber and Walling C G Tuck P O Box 13110 Tauranga for the Prisoner Martin

P J Kaye P O Box 941 Auckland for the Prisoner McArthur

R V MARK GREGORY KIMBER And Ors HC ROT CRI-2003-070-6113 [17 June 2005]

Introduction

[1] Mark Gregory Kimber, Benjamin Siouse Martin, Scott Ian McArthur and Regan Blair Walling, you each appear for sentence having been found guilty by a jury of offences arising out of the events of 16 September, 22 and/or 23 October 2003. The victim in each case was [D G].

[2] At the beginning of the trial there were 11 different counts requiring, effectively, the consideration of 18 separate charges. However, in the course of the trial I dismissed charges of aggravated burglary and wounding with intent to injure faced by Mr Kimber alone and he was acquitted on a joint charge with Mr Martin and Mr McArthur of kidnapping, and an individual charge of threatening to do grievous bodily harm. The two counts on which he was convicted and on which he appears for sentence today arose out of the events of 16 September:

1. Kidnapping Mr [G] by unlawfully carrying him off without his consent and with intent to cause him to be confined; and

2. Wounding with intent to injure.

[3] Mr Martin, Mr McArthur, and Mr Walling were found guilty of kidnapping Mr [G] by unlawfully carrying him off on 22 October 2003 and, in addition, Mr Martin and Mr McArthur were found guilty of kidnapping him by unlawfully detaining him on 22 and 23 October. And finally, the way that Mr Martin and Mr McArthur treated Mr [G] during that last kidnapping episode resulted in joint convictions for injuring with intent to injure and, for Mr McArthur alone, a conviction for common assault.

[4] Mr Martin and Mr McArthur were acquitted of further joint charges of threatening to kill and using a firearm in the commission of an offence.

Procedure

[5] The procedure that I propose to follow in sentencing is:

1. First, to summarise the evidence relating to all the charges on which I am to sentence;

2. Secondly, to talk about the effect that your offending has had on the victim;

3. Thirdly to mention the relevant purposes and principles of sentencing which apply in this case and other matters that are generally relevant to all of you; and

4. Then to discuss the submissions and reports that I have received in relation to each one of you and to sentence each one of you in turn. In doing that I will start with Mr Kimber, then Mr McArthur, Mr Martin and, finally, Mr Walling.

Evidence

16 September 2003

[6] Dealing with the facts I will start with the events of 16 September 2003 as I see them from the evidence which I heard during the trial.

[7] The genesis for Mr Kimber’s offending was a debt which Mr [G] owed him in relation to the supply of the drug “P”. Whether Mr Kimber supplied Mr [G] with the drug, as he alleged, or he was paid the money by Mr Kimber to supply it to him and did not produce it, as Mr Kimber alleged, was not resolved by the evidence, and is really immaterial.

[8] What is clear is that Mr [G] owed Mr Kimber $1,500 and that when he did not pay up straightaway Mr Kimber threatened him both verbally over the phone and by text messaging him, with the result that he was afraid to leave Auckland and go back to Tauranga. However, eventually he did return and he stayed with his friend, Craig Conn. And once he knew he was in town, Mr Kimber continued to pursue Mr [G] for payment.
[9] Matters between the two men came to a head on 16 September 2003. Mr [G]’s evidence at trial was that in the afternoon of that day he was about to leave Mr Conn’s home when he saw Karyn Hunt, a former girlfriend of Mr Kimber, driving her car down the long driveway to Mr Conn’s home. Mr Kimber was sitting in the front seat. As soon as he saw them, Mr [G] started running back down the driveway but he could not get into the house because a pane of glass in the door had been broken and it had been nailed over. He therefore ran back up the driveway, passing the car along the way. As he did so Mr Kimber jumped out and, carrying a baseball bat, which was in the car, chased him down the road. When he eventually caught up with him, he swung the bat at Mr [G], smashing it about his head, shoulder, hand, chest and legs.

[10] At that stage Ms Hunt also got out of the car and assisted Mr Kimber to drag Mr [G] back into the car and into the back seat. Mr [G] was adamant that he did not want to go with them. However, Mr Kimber sat beside him and Ms Hunt drove off. Mr [G]’s evidence was that as they proceeded along, Mr Kimber continued to hit Mr [G] with the baseball bat, splitting his face and nose open.

[11] From Tauranga they drove to Papamoa where they stopped at a service station. Mr [G] was bleeding profusely from the head. He was given a jersey or something similar to cover his head and instructed to duck down. While Ms Hunt filled the car and paid for the petrol, Mr Kimber stayed with him to ensure he did not run away.

[12] After the petrol station they proceeded to the home of Mr [G]’s friend Mr Tawa, who Mr [G] thought might be able to help him by paying the debt he owed Mr Kimber. Ms Hunt went to the house and spoke with Mr Tawa while Mr Kimber remained in the car with Mr [G]. When he came out, Mr Kimber asked Mr Tawa if he could pay Mr [G]’s bill and save his life but Mr Tawa was unable to help, whereupon Mr Kimber indicated that Mr [G] a “dead man”.

[13] There was then some talk of going to Bay Park to throw off the bridge.
[14] The next stop was just up the road from Bay Park where both Mr Kimber and Ms Hunt got out, leaving Mr [G] inside the car. However, because of his injuries and his general fearfulness, he was unable to anyway. From there they drove to Mr Kimber’s house and, as they did so, there was some discussion about who else could help Mr [G] get the money and threats that if he did not, it was all over.

[15] Once at the house, Mr Kimber told Mr [G] to shower and wash all the blood off and he gave him some overalls so that he would not bleed over the place. Shortly after having a shower, Mr [G] passed out. He was dragged on to the kitchen floor where he lay for what he thought was a couple of hours, but it was probably some time shorter than that. In any event, the episode finished when Mr Martin’s partner arrived and took him to the hospital.

[16] He was left outside and told to tell the doctors that he had been beaten up on the side of the road. However, rather than try to explain himself to the medical staff, Mr [G] went to a friend’s house nearby. By that stage it was after 9 o’ clock at night. She gave evidence that when he arrived he had obviously been beaten up. There was blood on his face and tee-shirt. He had cuts to his head and was holding his arm as if it was broken.

[17] The next day he went to see the doctor because he could not stop his head bleeding. On examination the doctor noted that his right shoulder was bruised and painful to move. There was bruising on his left side, his right wrist was sprained and he had a five centimetre cut on his shoulder which required stitching.

22 – 23 October

[18] A week after the September incident Mr [G] met Mr Kimber and gave him
$900. But by that stage he was told he still owed the original $1,500.

[19] The prelude to the remaining offences was an attempt to extract ephedrine. This happened during the week of 20 October 2003 at the home of Mr [G]’s former girlfriend, Nicole Kinealy. Four other men were involved with Mr [G]. He referred to them as Wykes, Rough Rider and Sandwich. The fourth was the
prisoner Scott McArthur. The attempt to extract ephedrine continued through the night but was eventually unsuccessful.

[20] Then, in the early evening of 22 October Mr [G] was lying on Ms Kinealy’s bed, watching television, when Mr McArthur, Mr Martin and a third man, who Mr [G] did not know at the time but later identified as Mr Walling, turned up at Ms Kinealy’s front door. They entered the house without knocking. Mr McArthur asked Mr [G] to come outside for a yarn and the three men escorted him, in his socks, down the hallway and outside. Once there, Mr McArthur told him that they were going for a drive up the road for a minute and put his arm around him and walked him to the car. Mr [G] said he did not try to struggle because there was not much point and he did not want to scare the children or the women who were at the house. Mr Martin unlocked the car door and he and Mr Walling sat in the front seats, Mr Martin in the driver’s seat. Mr [G] got in the back of the car. After putting the kiddie lock on, Mr McArthur joined him and then started hitting him on the head and elbowing him, saying that he had ripped him off with the “E”. Mr [G] tried to tell him that he did not but Mr McArthur would not listen. Mr McArthur was the only one who said anything. Mr Walling typed in text messages on his phone and showed them to the other two but neither he nor Mr Martin spoke.

[21] Mr Martin drove the car from The Mount to Tauranga, then turned down Welcome Bay Road, along Ohauiti Road and then down Poaki Road where, according to Mr [G], it stopped outside Mr Kimber’s house and Mr Kimber came out and threatened him. However, as the jury acquitted Mr Kimber on this second charge of kidnapping, I assume and accept that they accepted what his witness, Mrs Paki, said and that was that he did not go down downstairs or outside during that evening when she was there.

[22] What was undisputed was that Mr [G] was eventually taken to the Windermere Drive property where Mr Martin lived.

[23] Once there Mr Martin and Mr Walling moved a truck out of the way of the garage while Mr McArthur guarded Mr [G]. He was then led into the garage.
Although the evidence suggested that Mr Walling went with Mr Martin and Mr McArthur into the garage with Mr [G], it would seem that at that point his active involvement ceased. In any event, he was not charged with the third offence of kidnapping which began at that point in time.

[24] Mr [G]’s evidence, which I accept, was that once inside the garage the roller door was closed, a sheet put down in the middle of the floor and he was made to lie on it, on his stomach, with his hands behind his head. The two men, Mr Martin and Mr McArthur, then handcuffed him and tied his hands and legs together with number eight wire, which they then tied to the roof. Mr [G] was not able to see exactly what was happening because a black bag or something similar was put over his head and a sock doused in petrol jammed in to his mouth, which was taped over with insulation tape. What he did know was that the men then pulled on a rope so that he was pulled off the ground. They then released the rope slightly, with the result that his stomach touched the ground but his arms and legs remained in the air and then, Mr [G] said, they started kicking him in the face and ribs and hammered him on his right knee. He described it as like being hit with a sledgehammer. It was excruciatingly painful. They then poured petrol on the cuts on his head. After a while they turned the lights out and left. As they did so they took the gag out of his mouth. He was left swinging. He could not handle the pain so started screaming. Mr Martin came out of the house and tried to undo the handcuffs but by then Mr [G]’s hands had swollen and the handcuffs had to be cut off. He was then tied up again with number eight wire and left once more. After a while he managed to undo the wire, untie himself and get free. He tried to escape but the door had been locked on the outside and there were bars all over the windows. The roller door was also locked with a padlock outside. In the dark he found a screwdriver and started undoing the hinges on the door. Just as he was about to undo the bolt a dog jumped up against the door. At this Mr Martin came running out with a machete in his hand. He slapped Mr [G] around the head with the flat edge of it and told him to get back inside the garage. Mr McArthur followed him. The two men made Mr [G] lie back on his stomach and re-connected the wire so that he was spread out like a starfish or in a crucifix form. He was unable to move. They hit him a few more times as he tried to get away. Mr McArthur crouched down in front of him with a packet of matches telling him that he could do things like light some matches and
stick them down his fingernails. He said he would burn him, but that that could wait till the next day. Mr McArthur then put the sheet over Mr [G]’s head and left the garage, telling him to be quiet. Mr Martin put the screws back in the door and hung it back. Mr [G] thought that he was left in that position for a couple of hours. It felt like an eternity. At about 3.00 am Mr Martin came back and found Mr [G] shaking with the cold. He thought he had hypothermia. Mr Martin took him inside and made him lie on a couch where he fell asleep. Subsequently he was taken into a back bedroom and the door was locked. He remained there until it was daylight. However, when he saw a car drive up to the house with the windows and the boot open, he started panicking. He believed that if he was taken out the door, he would be put in the boot and his life would be over. Accordingly, he broke the window, fell through it and ran to a neighbouring house. It was almost midday. The neighbours called the Police and he was taken to the hospital.

[25] Mr McWilliam estimated that the time from the beginning of the combined kidnapping episode to the end, in other words from the time that Mr [G] was picked up at Crane Street to the time he escaped out the window was approximately 16 hours.

[26] As a result of the treatment meted out to him in the garage, Mr [G] sustained severe bruising to his ribs and head. He also complained of pain in his right wrist and right knee. The doctor who examined him concluded that the tenderness was consistent with a rib fracture or bruising to a rib. There was also a small laceration on his right back. A plaster cast was put on his wrist because the possibility of a scaphoid fracture could not be excluded. His lips were swollen and there were abrasions on his face and scalp. He was given morphine for pain relief and discharged.

[27] In giving evidence Mr McArthur acknowledged going to Mr [G]’s girlfriend’s home but claimed that Mr [G] went voluntarily with him in the car and that during the ride back to Mr Martin’s house the conversation centred on how Mr [G] could get to Palmerston North to do a cook, because his car had been taken by the others at the house. Mr McArthur said that he told Mr [G] that he did not want to get involved but, notwithstanding that, when they were all in the garage
at Mr Martin’s place smoking cannabis joints, Mr [G] kept nagging him to such a degree that he swore at him and then punched him in the mouth, knocking him to the ground. He said that he then went home.

[28] He denied tying up Mr [G] in the shed, saying that the number eight wire that was there was used for tying up dogs, both Mr Martin’s and his own, and that the wire cables were attached so high so that the dogs did not get tangled with each other.

[29] Mr Hollister-Jones in presenting closing submissions for the Crown identified some 25 points of evidence which confirmed the evidence of Mr [G] in relation to what went on inside the garage. The jury obviously accepted those points and so do
I. They related to matters such as the blood on the floor of the garage, the finding of the masking tape, the handcuffs and the position of the wire and matters of that nature.

Impact on victim

[30] It was obvious to everyone present in the Court that this offending had a significant effect on Mr [G]. First there were the physical injuries, which I have already outlined – the swollen lips, bruised ribs, left arm and right knee. Mr [G] said that his ribs and knee took months to come right and that he has had problems walking on his knee. In addition, he had to have a molar, which was broken during the October incident, removed from his mouth.

[31] He also complained that he had suffered the financial costs associated with the loss of his car and his clothes at this time, although there was nothing to indicate that any of the prisoners were responsible for that loss.

[32] The most significant harm suffered by Mr [G], in my view, was the psychological damage that he suffered as a consequence of these events. He was obviously extremely fearful as he gave his evidence. In fact, he was so fearful that he did not turn up on the date scheduled for the first trial and was under witness protection for the second. He says that having to come to Court was one of the
hardest things he has had to do. He had to re-live these episodes both at depositions and trial. He has since had to obtain a new identity which has turned his life upside down. He has had to pretend that he is someone that he is not. He has had to leave his parents and his siblings behind and has been unable to maintain contact with his six year old daughter. The strain of living with a new identity has also affected new relationships he has entered into. He feels he has a lifetime sentence. He said that at least the prisoners will be able to have visits with their family and at the end of their sentences will have a chance to lead a normal life, whereas he has had to take on a totally new life which, at 29, he finds very hard.

Matters of general application

[33] In imposing sentence on you, I am mindful of the purposes of sentencing as set out in the Sentencing Act 2002. They are to hold the offender accountable for harm done to the victim and the community by the offending, to promote in offenders a sense of responsibility for and acknowledgment of that harm, to provide for the interests of the victim of the offending, to provide reparation for harm done, to denounce the conduct of the offender, to deter the offender or others from committing the same or similar offences, to protect the community from the offender, and to assist the offender’s rehabilitation or reintegration into society.

[34] The Act also sets out the principles of sentencing. The relevant factors for present purposes include the directive that the Court must take into account the gravity of the offending, the seriousness of the type of offence in comparison with other types of offences, the desirability of consistency between sentencing levels and between offenders, the effect of the offending on the victim, the need to impose the least restrictive outcome appropriate in the circumstances, and the offender’s personal circumstances.

[35] However, while the Court is under an obligation to impose the least restrictive outcome appropriate in the circumstances, I note that none of the defence counsel submitted that a sentence other than imprisonment is appropriate for any of the offenders in this case.
[36] I also take into account counsels’ acknowledgment that the appropriate way of dealing with sentence, where there are more than one offence, is to impose concurrent sentences, with the lead sentence reflecting the totality of the offending.

[37] A minor point which I wish to record concerns counsels’ criticisms of the contents of some of the pre-sentence reports where the report writer has obviously worked from a previous summary of facts which does not agree with the evidence that came out during the course of the trial, and certainly does not reflect the verdicts delivered by the jury. I want to make it clear, as I have already done in the course of hearing submissions from counsel, that in imposing sentence I am guided by the evidence that I heard in Court, and not by the report writer’s opinion about what that evidence was.

[38] And there are two other points.

[39] I have been given fines print-outs indicating that some of the prisoners owe fines. Those matters need to be dealt with by the District Court. I do not have the authority to remit their fines on imposing a custodial sentence. They need to be dealt with in accordance with the proper procedure under s 88 of the Summary Proceedings Act 1957.

[40] And finally just this morning I have received a decision of the Court of Appeal on a kidnapping charge, and it is the case of R v Qichao Lianga CA 448/04 2 June 2005. I refer to it for one reason only and that is the final sentence of the judgment in which the Court states that in cases such as this, personal circumstances are of limited relevance. And so while I will certainly take into account the personal circumstances of each of the prisoners, they will not carry as much weight as they might in other cases.

[41] So those are the general matters that I wanted to refer to.

[42] I turn now to consider the appropriate sentence to impose in respect of prisoner, starting with Mr Kimber.

Mark Gregory Kimber

[43] As I have already noted, Mr Kimber appears for sentence on two charges relating to offending committed on 16 September 2003:

1. The first charge is one of kidnapping and that carries a maximum sentence of 14 years imprisonment;

2. The second charge on which he was found guilty was a charge of wounding with intent to injure, which carries a maximum of seven years imprisonment.

[44] Before discussing the appropriate sentence to impose, I want to say something of Mr Kimber’s personal circumstances.

[45] Mr Kimber you are 40 years old. Your parents separated when you were in your early teens. You went to live with your father. Because he often worked away from home, you learned to fend for himself from a relatively young age. You left school at the age of 16.

[46] Since then you have been in two long-term de facto relationships: the first with Pauline Gibb with whom you have a daughter now aged 13 and a son aged 16. The second relationship has lasted for the last years, being with Paula McKenzie.

[47] You are described as a loving, supportive and protective father to your children and their mother, and your absence from the children’s lives is keenly felt.

[48] I have received letters from the children’s mother, among many other references and letters of support that I have received and read.

[49] She refers to the fact that your son, as a growing teenager, needs your guidance, and that your daughter, who suffers from pulmonary hypertension, may need a heart and lung transplant in the near future, particularly misses you.
[50] Your current partner, Ms McKenzie, also suffers ongoing health problems and would dearly like your presence with her, but she remains supportive of you.

[51] Others, such as your parents and close family friends, have written in glowing terms of the help that you have given, and the changes you have made in your life, and have urged the Court to give you the opportunity to make a fresh start, possibly in a new environment away from old friends and associates.

[52] As the pre-sentence report writer said – and although I know that you, and your counsel particularly are, rightfully, critical of some parts of the report, I would adopt the description that is given that you are man with two sides to your character: that of a caring family man; and what is described as a more sinister side.

[53] When you have been in employment you appear to have worked hard and well in a variety of occupations, ranging from shearing, scrub-cutting and fencing to building and, more recently, that of a maintenance engineer. You have also worked hard at building your own home, which is of considerable value.

[54] On the other hand, you have offended fairly consistently throughout your adult life. You first appeared in the District Court in June 1981. Since then you have acquired:

1. Five convictions for violent offending:

A conviction for male assaults female in 2003, for which you were sentenced to one year imprisonment;

Wounding with intent to cause grievous bodily harm in 1998, for which you received a sentence of four years nine months imprisonment – and I note that that offending was in conjunction with your co-offender, Mr Martin;

A conviction for injuring with intent to injure in 1993, when you were sentenced to two years imprisonment; and
Two convictions for common assault in 1990 and 1992.

2. In addition, you have five convictions for cannabis related offending entered between 1991 and 1999.

3. Three convictions for property offences;

4. Seven for driving related offending such as dangerous and careless driving and driving with excess breath alcohol. and

5. One for obstructing the Police.

[55] In other words, you have a total of 21 previous convictions since 1981.

[56] The other features of your lifestyle have been your involvement with a gang and your use of drugs. You joined the Filthy Few gang in 1990 and remained a member until you were remanded in custody for the current offending in 2003. You acknowledge that at the time of this offending, you were a user of the drug “P”, having started using it shortly after your release from prison in 2002. You say that shortly afterwards you consulted your doctor and sought assistance through your then employer to give it up, and that is affirmed by both those people.

[57] You also admit to past use of cannabis but claim to have stopped in 1990, which seems somewhat difficult to reconcile with your subsequent drug convictions
– perhaps that is something you need to look at a bit more carefully.

[58] In any event, against that background the Crown submit that the appropriate sentence in your case would be one of preventive detention but that if the Court is not minded to impose such a sentence, an appropriate starting range for a determinate sentence would be between six and seven years imprisonment.

[59] Although in his written submissions Mr McWilliam submitted that that was an appropriate starting point before taking into account aggravating factors, I note that in the course of submissions he accepted that that range should include aggravating features.
[60] Mr Mabey, on your behalf, does not accept that the basis for imposing preventive detention is made out in your case. He accepts, however, that a finite term of imprisonment, in the range of five years, although possibly up to a maximum of six, can be justified, having regard to the facts of the offending, previous decisions in similar circumstances and allowing for aggravating factors which apply in your case. He would also accept that in the event that a finite sentence was imposed, the Court would in all probability be looking at imposing a minimum non-parole period.

[61] The purpose of preventive detention is specified in s 87(1) of the Sentencing Act 2002:

“to protect the community from those who pose a significant and ongoing risk to the safety of its members.”

[62] There are three pre-conditions to the imposition of such a sentence. They are, for present purposes:

1. That the prisoner is convicted of a qualifying violent offence – which is defined to include both offences for which you appear for sentence today.

2. Secondly, that the person is over 18 years of age, which you certainly are; and

100. Thirdly, that the Court is satisfied that the prisoner is likely to commit another qualifying violent offence if released at the sentence expiry date.

[63] Section 87(4) sets out five matters which the Court is required to take into account in deciding whether or not to impose a sentence of preventive detention, namely:

“(a) any pattern of serious offending disclosed by the offender's history; and

(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and

(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.”

[64] Although in the past preventive detention has most commonly been imposed in cases of sexual offending, there has been an increased tendency to impose this sentence for non-sexual violent offending. The cases I have considered in this regard include R v Keremete CA 411/03 8 July 2004, R v Carroll CA 153/03 18 November 2003, R v Job HC AK CRI-2003-092-026751 18 October 2004, R v Taukamo HC AK CRI-2004-035-919 30 November 2004, R v Edwards CA 223/04 17 November 2004, R v Abbott HC HAM CRI-2003-019-019334 23 March 2004 and R v Hoggart HC HAM T030376 19 February 2004. I do not propose to go through them; I simply mention them.

[65] The approach to be taken by the Court was spelt out by the Court of Appeal in their decision in R v C [2003] 1 NZLR 30 and recently confirmed in R v Mist CA 480/03 25 February 2005.

[66] I am satisfied that the pre-conditions to the imposition of a sentence of preventive detention are met in this case, and indeed Mr Mabey did not argue against that. The only one of the three which requires some consideration is the third pre- condition – whether you are likely to commit another qualifying offence if released at the expiry of a finite term. But both Dr Majeed, a psychiatrist, and Stephen Els, a psychologist, who prepared reports addressing this issue, concluded that you pose a significant high risk of re-offending.

[67] Accordingly, I can turn now to consider the s 87(4) factors.

[68] So, first of all, the pattern of serious offending disclosed by your history.

[69] I accept that your list of previous convictions shows an ongoing pattern of violent offending and that the current offending was committed while you were still subject to a sentence of four years, nine months imprisonment imposed in October
1993 for the wounding with intent to cause grievous bodily harm, and that it also occurred when you were on bail in relation to an incident on 30 August 2003 in respect of which you ultimately pleaded guilty to charges of male assaults female and wilful damage.

[70] The second factor is the seriousness of the harm to the community caused by the offending. Under this heading I take into account that this offending involved considerable aggravating features. I will not go through them now because I will come back to consider them when I later consider whether a finite sentence would be more appropriate.

[71] Thirdly, the information indicating a tendency to commit serious offences in the future. In that regard I note that in his report Dr Majeed stated that your:

“risk of future violence remains significant unless effective treatment is provided to address not only violence but also other aspects of his behaviour and lifestyle, including the use of recreational drugs and alcohol.”

[72] And both the pre-sentence writer and Mr Els’ came to the same conclusion.

[73] The fourth factor is the absence of or failure of efforts by the offender to address the cause or causes of the offending. In that regard I note that, notwithstanding the periods you have already spent in prison, you have never received treatment to reduce your risk of re-offending.

[74] It is said that the problem has not been a question of the availability of treatment; it has been rather your attitude towards your offending. In that regard, Mr Els noted that:

“The primary responsivity barrier to providing treatment for Mr Kimber is the denial of his offending. Unless he acknowledges his offending, no intervention is likely to assist him in addressing his criminogenic needs.

Significant also is his assessment results using the psychopathy checklist on which he attained a very high score, a factor indicating interpersonal and effective deficits and the presence of stable anti-social beliefs and attitudes, which are not easily moderated by psychological treatment.”

[75] So what he is basically saying is that the way that you look at those about you and the way you see your presence in society does not help you to deal with other people and that while you hold the sort of beliefs that you do, you are going to be helped necessarily by psychological treatment. So you would need to change your attitudes, otherwise the prognosis is not great.

[76] While you have said that you want to make a fresh start, unless you take steps to address the causes of your offending, the expectation of the experts is that you will not be able to stay out of trouble.

[77] The final factor that I have to take into account, and it is probably the most important, is the principle that a lengthy, determinate sentence is preferable if this provides adequate protection for society.

[78] So the first thing that I need to do is to consider what fixed term sentence would be appropriate, taking into account normal sentencing principles.

[79] Mr McWilliam submitted that the relevant cases were R v Moffatt CA 193/01 30 October 2001 and R v Crowe. As well as Moffatt, Mr Mabey also referred me to Ratana and Sole CA 357/90 and 358/90 25 February 1991 and R v Wharton CA 374/02 27 March 2003.

[80] In Wharton the Court of Appeal considered categories of kidnapping offending, including a category known as gang activity for the collection of proceeds of crime and said that in that case an appropriate sentence was three and a half years imprisonment.

[81] In Moffatt a six year starting point was taken and a reduction given to four and a half years for a guilty plea, and the offender in that case was a member of a local white supremacist gang and the victim was a member of the gang he was trying to leave.

[82] And in Ratana and Sole, which was a case in 1991 involving charges of kidnapping, injuring with intent to injure and threatening to do grievous bodily harm,
and there was a detention of three to four hours and a long and savage beating, the main offender’s sentence was increased on a Crown appeal from three years to four and a half years.

[83] So what about the kidnapping in this case?

[84] In my view it involved gratuitous violence; it lasted for several hours until Mr [G] was taken to the hospital grounds; it happened against a background of ongoing threats of severe violence and, in fact, death threats. I accept that the victim was petrified and feared for his life.

[85] There were no mitigating features but a substantial number of aggravating ones. They included the use of a weapon; the fact that the offending was committed while you were on bail for a violent offence and still subject to a sentence for violent offending; the profound emotional and psychological harm caused by your offending on the victim, who was defenceless; the fact that he needed medical treatment for his injuries; the fact that the purpose of the offending was to extract a drug debt; your apparent lack of victim empathy or remorse at the time or since; and your previous convictions. I had also included in that list premeditation, but I basically accept Mr Mabey’s submissions that this probably was not something that was planned; it was probably something that just happened when you were in the vicinity of Mr Conn’s home, Mr [G], who I accept you had been pursuing for the debt, was there and you caught up with him.

[86] So taking those factors into account, I would see an appropriate finite sentence as in the vicinity of five and a half to six years. So the question is can the public be kept safe with such a sentence, given your risk of re-offending, and should I impose a sentence of preventive detention?

[87] It is clear from the case of R v C [2003] 1 NZLR 30, 33-34 that whether or not preventive detention is imposed is a matter of discretion for the Court. Preventive detention is not a sentence of last resort but its imposition must be carefully considered.
[88] While the matter is finely balanced, in the end I am prepared to accept that the protection of the public can be met by adopting the approach suggested by the Court of Appeal in R v Leitch (1997) 15 CRNZ 321, 329 quoted by Mr Mabey in his submissions:

“... where the sentencing Court considers that a finite sentence arrived at in accordance with normal principles would not be adequate for the protection of the public, it is permissible to consider a finite term which would be less severe in its effect on the offender than preventive detention but which at the same time would be of greater severity than a sentence related only to the usual balancing of the desirability of prevention against the gravity of the offending. In short, there is some room for public protection purposes to go beyond what would otherwise be the upper level of a sentence. That room must be limited in order to maintain the integrity of general sentencing principles.”

[89] Probably the factor that does weigh most with me in making a decision not to impose preventive detention is the fact that you have not previously been given or taken the opportunity to address your offending through a formal programme or counselling or treatment. That may be a problem of your own making; it may be that you have not been given the opportunity. But it seems to me that before such a severe sentence as preventive detention is imposed, you need to be given that opportunity. If you do not take it and you re-offend, you cannot expect any mercy. You will know what the result will be next time. But I would hope that you will act upon your expressed wish to make some changes in your life, that you will take advice, that you will really look at yourself and your past and your offending and look to the future and take responsibility for yourself and for your actions and do something to change, because you are the one who has to do something to change.

[90] I am going to impose a finite term then of six and a half years imprisonment, which is at the very upper end of the scale, I appreciate, but I am going to give you some room for making good your wish to change. I am going to impose a minimum non-parole period but I am going to make that three and a half years so that if you do change and can persuade the Parole Board that you have changed, you have the chance to be released earlier than two-thirds of your sentence.
[91] There remains the charge of injuring with intent to injure. On that charge you are sentenced to two and a half years imprisonment, to be served concurrently. The fines are to be dealt with in the District Court.

Scott Ian McArthur

[92] I turn now to the position of Mr McArthur.

[93] Mr McArthur, you appear for sentence on four charges:

1. Two charges of kidnapping, which carry maximum sentences of 14 years imprisonment;

2. One of injuring with intent to injure, which carries a maximum of 10 years imprisonment; and

3. One of common assault, which carries a maximum of one year imprisonment.

[94] You are 31 years of age. You grew up in a close family. Then, at the end of your secondary schooling in New Zealand, you went to the United States on a basketball scholarship. However, because of injury, you could not continue at university. You remained in the States for some time and were married there, although that marriage was annulled after some years. You returned to New Zealand in 1995 and you obviously entered into a relationship then because you have an eight year old son from that relationship. You cared for that son, I understand, for several years as a solo father and you maintain a good relationship with him and with your former partner, who remains supportive of you.

[95] You have been in itinerant employment between prison sentences. Most recently you were employed as a farm labourer and a security guard. You say that you have ongoing problems with an injury following on from your days as a basketballer and also suffer the ongoing consequences of injuries you sustained in a motor vehicle accident in 2002.
[96] Although you say you have not consumed alcohol for some time and that hard drugs are not a feature of your lifestyle, cannabis obviously is and has been as you have nine convictions for cannabis use and supply in the period up to 1998.

[97] Other features of your list of previous convictions are your 18 convictions for offences of dishonesty, four for breach of periodic detention and, most significantly for present purposes, three convictions in 1995 and 1996 for common assault, progressing to a conviction in 1999 for wounding with intent to cause grievous bodily harm, for which you were sentenced to four and a half years imprisonment. That offending was said to have involved you and another person paying a visit to an alleged drug dealer, armed with a cricket bat and a wrought iron staff.

[98] As I said, you gave evidence in the Court – you were the only one of the prisoners to do so – and, although you admitted punching the victim, you denied all the other details of the offending. The pre-sentence report writer says that your continued denial of the offending precludes you from being involved in rehabilitative programmes to address your violence, and the therefore concludes that you are a high risk of re-offending. - And that is probably supported, to some degree, by your failure to comply with conditions of supervision in 1997 and the breaches of periodic detention.

[99] The Crown submissions on sentence noted a number of aggravating features of your offending: the use of physical violence and weapons; the physical difference between you and the victim; the sadistic and gratuitous physical assaults that you inflicted on the victim at a time when he was defenceless due to the restraints that were imposed on him; the unlawful entry into the home of Ms Kinealy, and I accept her evidence that you did not knock or certainly did not knock loud enough for anybody to come and let you into the home; the fact that you were still subject to the sentence of four years, six months imprisonment; the physical and psychological harm inflicted on your victim; the high level of cruelty involved in the 16 hour detention that the victim was subjected to; the fact that he was handcuffed, hog-tied, blindfolded and gagged; and the level of pre-meditation, although it has not been submitted, and I certainly would not accept, that either episode were spur of the moment events on your part, or Mr Martin’s.
[100] Mr Kaye, who was not counsel in the trial, but has acted very appropriately and sensitively in picking up the brief at the sentencing stage, has helpfully put forward quite a number of authorities for my consideration. In his written submissions he accepted a range of eight to 10 years but then, in oral submissions, he retracted from that somewhat, suggesting that a sentence of eight years was at the higher end of the scale. He suggested that, in fact, sentencing for this type of case could be put into two categories: the first group involved cases where there was a kidnapping on its own, accompanied by violence, and attempts to extort a debt or retribution; and the second group covered kidnapping with violence but went a step further and involved aggravating features such as sexual violation or aggravated robbery. He accepted that sentences for offences in the second group were up to the 10 year range, perhaps higher, but that for the first group, into which, he submitted, you fell, the sentences were probably in the six to eight year range. Accordingly, a sentence of seven years would be appropriate in this case.

[101] By comparison, the Crown’s submission was that a sentence in the vicinity of nine to 10 years is appropriate.

[102] In my view, the circumstances giving rise to the second kidnapping charge particularly, involved extreme callousness, approaching torture. The victim rightly feared for his life; he did not know what was going to befall him. All his expectations were that things were only going to get worse. He had no control over what was done to him. Looking at it overall, the offending that you and Mr Martin were engaged in was at the higher end of the scale. In all the circumstances I regard an appropriate sentence for the lead offence – the second kidnapping charge – is nine years imprisonment, and I will impose that accordingly.

[103] The Crown seek a minimum non-parole period. I am satisfied that the two conditions set out in R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 are met in this case, but I am not prepared to impose a minimum non-parole period that is crushing. I want to also give you the opportunity of addressing the causes of your offending, or looking at yourself and looking at why things have turned out the way that they have. If you are going to make any changes, as I have said to Mr Kimber, will require you taking responsibility for your offending, as a first step. But to give you some incentive and
at the same time to protect the public, I propose to impose a minimum non-parole period of half that nine year period and so, a minimum non-parole period of four and a half years imprisonment. On the charge of injuring with intent to injure, you are sentenced to a concurrent sentence of four years imprisonment, and on the first kidnapping charge, which, I am satisfied, happened at your behest, you are sentenced to two and a half years imprisonment, and on the assault charge, which you effectively admitted to, you are sentenced to six months imprisonment. All those sentences are to be served concurrently.

Benjamin Siouse Martin

You are said to have been abused by your stepfather. You left school at 15 years with no formal qualifications. You obtained work in your uncle’s furniture removal business and thereafter have worked sporadically when not in prison. You have been in a de facto relationship for the past four years and have a two year old daughter, and the home at Windermere Dr where this serious offending took place was bought by your partner’s parents for their daughter.

[107] The major features of your adult life have been your membership of the Filthy Few gang and your close relationship with Mr Kimber, who has obviously been a kind of mentor to you. In fact, your previous most serious offending was committed with him in 1998, as a result of which you were convicted of wounding with intent to cause grievous bodily harm and sentenced to four years imprisonment. At that stage you were described as being a prospect for the Filthy Few. You are now a fully patched member and have no intention of giving up those gang ties.
[108] Your other offending is all related to motor vehicles. You have one conviction for driving with excess breath alcohol in 1997, another 10 for theft and unlawfully getting into or taking motor vehicles, for which you received your first sentence of imprisonment.

[109] In addition, although as I have said, I am not going to be dealing with the fines, I note that you have outstanding fines and accrued penalties of $19,713.50, all incurred for minor traffic infringements. What they do indicate to me is that you have gone along quite happily flouting the law and disregarding legal constraints.

[110] Other features of your life influencing your offending has obviously been your daily consumption of alcohol and your regular consumption of cannabis. And while I did not accept a lot of what McArthur said in evidence, I do accept his statement that you had consumed cannabis prior to or in the course of this offending, because that is consistent with your subsequent behaviour.

[111] Like your co-offenders, you have continued to maintain a not guilty stance, to deny that you are violent, and to minimise the criminality of your gang involvement. Consequently the pre-sentence report writer suggested that you are unlikely to respond to rehabilitative measures.

[112] However, on the other side of the coin, I have received a large number of references in support of you from your partner, from your partner’s parents, and from friends and people who care for you. You have obviously made changes insofar as your relationship is concerned although the stability of it has been put at risk by your offending.

[113] At your young age, you have the opportunity to do something positive with your life, not involving offending, for the sake of your daughter and your partner. But again you have to take responsibility for your life, you cannot blame what has happened to you on other people because you were involved in a horrendous crime. It was described by the pre-sentence report writer, I think it was, as near the worst of its kind. There has been some quibble taken with that, but it was certainly not behaviour that you should be proud of; I think that your behaviour was despicable.
[114] I will not go through the Crown submissions or the defence submissions because it is accepted on your behalf, both by your counsel and by the Crown, that you should be sentenced in the same way as Mr McArthur. By and large, the aggravating features that I have outlined in respect of him are much the same for you and there are really no mitigating factors insofar as the offending is concerned.

[115] Accordingly, looking at the totality of the offending, I will impose on you, like I have on Mr McArthur, a sentence of nine years imprisonment on the lead kidnapping charge. On the first one, I will impose a sentence of two and a half years imprisonment, and on the injuring with intent to injure a sentence of four years imprisonment, all to be served concurrently.

[116] You will have the same minimum non-parole as Mr McArthur, which was half the sentence imposed, which is four and a half years.

[117] And I should say in respect to you, Mr McArthur and Mr Kimber that I would make a plea to the prison authorities that, notwithstanding the apparent lack of remorse that you have each expressed, or the report writer’s perception that you lacked remorse and that you did not accept responsibility for your offending, I would hope that you will be re-assessed and if there is the opportunity of change, that you will be given the opportunity for psychological counselling or attending a “Straight Thinking” programme or a “Stopping Violence” programme, or all of them so that you can learn some tools to address your offending and make good use of your time while you are in prison.

Regan Blair Walling

[118] So finally I come to Mr Walling.

[119] I regret that it has been a long day for you, Mr Walling, and that you have had to wait until now to know the outcome of your sentencing.

[120] You are in a very different category from the other three. People have written in on your behalf – many friends, family members, your partner, school
friends – all in support of you. They all say that your offending was totally out of character; it is not the sort of thing that they thought someone like you would do. They suggest you were in the wrong place at the wrong time. Perhaps you were easily led. You certainly got in with the wrong group. However, I am satisfied that you were aware what was going on, and that was obviously the conclusion that the jury reached, but you were not the ringleader; you were charged as a party and you were found guilty as a party. You were certainly on the periphery; you were there to make up numbers.

[121] I have sentenced Mr Kimber and Mr Martin for the first kidnapping offence to terms of two and a half years imprisonment. In my view your culpability is at a lower level. I consider that a sentence of 18 months imprisonment is appropriate in your case, and I impose that accordingly.

[122] I am also satisfied that you should be given leave to apply for home detention. The offending took place at a time before s 97(3) of the Sentencing Act 2002 was changed, and so, given the provision that applied at that time, I am bound to grant you leave to apply for home detention unless I am satisfied that it would be inappropriate to do so. However there is no reason why I should refuse you leave to apply for home detention and it would certainly seem to me to be an appropriate case to grant you leave although, of course, that is a matter for the Parole Board.

[123] You have no relevant previous convictions. I would certainly hope that you have learnt your lesson from this. It is a pretty drastic sort of way to learn a lesson about who to associate with and to keep off drugs. But you have already shown, by your willingness to express empathy for the victim, that you are prepared to step out, and act differently from your associates. I hope your strength from doing that will enable you to get back on to the straight and narrow and make a useful life, which I am sure you are capable of doing.




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