R v Adlam-Kiro

[2020] NZHC 2679

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2020-027-000229

[2020] NZHC 2679

THE QUEEN

v

AIGE SHAKUR VALINTINE ADLAM-KIRO

Hearing:	13 October 2020
Appearances:	M Smith and S Patia for Crown C Cull for Defendant
Judgment:	13 October 2020

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors/Counsel:

Crown Solicitor, Whangarei

Catherine Cull, Barrister, Kaikohe

R v ADLAM-KIRO [2020] NZHC 2679 [13 October 2020]

[1]    Aige Shakur Valintine Adlam-Kiro, you appear for sentence today for the manslaughter1 of Tawhirimatea Tahere on 24 February 2020 and the unlawful possession of a firearm.2 On 20 August 2020, you pleaded guilty to both charges. Brewer J entered your convictions and read a first strike warning3 because manslaughter is a qualifying offence under the ‘three strikes law’.4

[2]    In setting down your sentencing, Brewer J agreed that you could remain remanded on bail to enable you to participate in a restorative justice process and stipulated that the pre-sentence report should contain a home detention appendix.

[3]    I acknowledge the presence in court of Aroha Tahere, Mr Tahere’s mother, and other members of Mr Tahere’s family. I also acknowledge the presence of members of your family, Mr Adlam-Kiro, in particular your mother, grandmother and partner. It is difficult time for both families and I pay tribute to both families for the compassion, understanding, aroha and forgiveness that has been displayed.

[4]    As we have heard from Aroha Tahere, we are here because of a tragedy caused by youthful recklessness. Tawhirimatea Tahere was your cousin and friend. You grew up together, even though you are a little older than Mr Tahere. You did things together. No doubt, he looked up to you, his older cousin. As he died, he forgave you for what had happened.

[5]    Because sentencing is a public act, I must briefly explain the circumstances that give rise to the sentence I am about to impose. I regret the distress this may cause Mr Tahere’s family and, indeed you and your family, Mr Adlam-Kiro. This account is taken from the summary of facts which formed the basis of your guilty pleas.

[6]    On 24 February 2020 at about 8:44 pm, you were sitting in the driver’s seat of your car at your cousin’s house in Kaikohe. Mr Tahere was sitting in the front passenger seat. You had placed the gun under the driver’s seat. You did not hold a firearms licence.

1      Crimes Act 1961, ss 171, 160(2)(a) and 177. Maximum penalty life imprisonment.

2      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine of $5,000.

3      R v Adlam-Kiro HC Whangarei CRI-2020-027-229, 20 August 2020, call over minute of Brewer J.

4      Sentencing Act 2002, s 86B.

[7]    The gun was a modified, ‘sawn-off’ double-barrel shotgun. You and Mr Tahere were examining the weapon — twisting it around and looking at it together. At one point, when you were handling the shotgun, the barrel was pointed towards Mr Tahere. The gun discharged, and the shot hit Mr Tahere in the stomach area.

[8]    Mr Tahere sustained damage to his internal organs and blood loss. Mr Tahere died of his injuries soon after. The firearm was removed from the scene by someone other than you. It was recovered by Police the following day at an address in Kaikohe.

[9]    In statements to Police, you admitted to being in possession of the shotgun at the time of the incident. You said the shotgun was discharged accidentally. You said you and Mr Tahere were good friends and you would never hurt him intentionally. You also said you did not know the firearm was loaded.

[10]   Subsequent examination of the gun confirmed that it was a modified shot gun, with the stock removed and replaced by a pistol grip and the barrels cut down. The firing pin of the top barrel was damaged and could not discharge, but the bottom barrel was operable if the trigger was pulled. The safety catch was jammed in the open position.

Impact of the offending

[11]   We have heard from Aroha Tahere what the loss of her oldest child and only son has had on her and her family. I can only repeat her words: her heart stopped and her world crumbled when she found out what had happened.

[12]   Ms Tahere’s statement is the most extraordinary example I have heard of true compassion, love, understanding and forgiveness. It is an example to all of us about what is best in the human spirit. She does not seek your imprisonment. She wants you to be a part of the life of her family so your whānau can heal together.

[13]   That same compassion was shown again at the restorative justice conference in which you participated along with Ms Tahere and Lehi Tahere, Tawhirimatea’s father.

Approach to sentencing

[14]   There are two stages to the sentencing process.5 First, I will set the starting point of the sentence based on the seriousness of the offending in this case, including any aggravating and mitigating factors of the offending, and also having regard to sentences imposed in previous, similar cases. Secondly, I will consider your personal circumstances as an offender — any aggravating and mitigating factors of your personal circumstances, including your guilty plea — and adjust that starting point to reach a final sentence.

[15]   In sentencing today, I must be guided by the purposes and principles in ss 7 and 8 of the Sentencing Act 2002. Of particular relevance in your case, Mr Adlam- Kiro, I consider the sentence must act as a deterrent so that you and others do not commit similar offences in the future; it must hold you accountable for the harm you have caused to Mr Tahere by taking his life, and to his whānau, and provide for their interests; and it must denounce your conduct and promote a sense of responsibility for the harm caused.

[16]   In fixing a sentence, I have regard to the gravity of the offending and the degree of culpability, the desirability of consistency with sentences for similar offending, the impact of the offending on the victims, your personal, whānau and cultural background, and the need to impose the least restrictive outcome that is appropriate in the circumstances.

Setting the starting point

[17]   The starting point is set principally by reference to the more serious offence – manslaughter.

[18]   The maximum penalty for manslaughter is life imprisonment. However, because of the wide range of the circumstances that can give rise to manslaughter, the Court of Appeal has said on many occasions that there is no tariff case, or guide

5      Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [45].

decision, for sentencing in manslaughter cases.6 I have, however, had careful regard to the cases to which counsel have referred, as well as other cases.

Crown submissions

[19]   Mr Smith for the Crown says that an appropriate starting point in your case is between four and a half and five years’ imprisonment.7 Mr Smith submits that the

aggravating features of the offending are the use of a weapon;8 the seriousness of harm resulting from the offence,9 being the death of Mr Tahere; and premeditation,10 because you had the gun unlawfully in your possession for some time, had placed it in the vehicle and alterations had been made to the gun for no legitimate purpose.

Mr Smith says that because the trigger mechanism had no defects, you were at least grossly reckless when you were in possession of the weapon and caused it to discharge. Mr Smith submits there are no mitigating features of the offending.

Defence submissions

[20]   Ms Cull submits that the starting point should be between three and three and a half years’ imprisonment because, Ms Cull says, your offending is not comparable to previous cases. Ms Cull says that, unlike those previous cases, you did not

intentionally aim the gun at anyone when it was believed the gun was not loaded and you did not intentionally discharge the gun, as has happened in hunting and other

accidents.

Analysis

[21]    I have considered sentences handed down in comparable manslaughter cases involving the accidental or reckless discharge of a firearm. It is important to note the relevant facts in order to assess the extent to which those facts are similar to the present case.

6 R v Edwards [2005] 2 NZLR 709 (CA) at [14]. Murray v R [2013] NZCA 177 at [20].

7      R v Gideon [2015] NZHC 2333, upheld in Gideon v R [2016] NZCA 16. R v Sutcliffe [2017] NZHC 2882. R v Sanft [2017] NZHC 2164.

8      Sentencing Act 2002, s 9(1)(a).

9      Sentencing Act 2002, s 9(1)(d).

10     Sentencing Act 2002, s 9(1)(i).

[22]   In R v Gideon,11 the offender and his brother were taking photos of each other, posing with a sawn-off shotgun. The gun accidentally discharged when the defendant was pointing the gun, with his finger on the trigger, at his brother, who died. In that case, the Court adopted a starting point of four and a half years’ imprisonment, having regard to the modified nature of the weapon, which meant it had no lawful purpose, the fact the defendant participated in the loading of the gun, the fact the defendant pointed the gun at his brother, and had his finger on the trigger.

[23]   In R v Goldstone,12 the defendant pointed a double-barrel shotgun at his girlfriend’s head as she was taking a photo of him. His finger was on the trigger. The gun discharged and the girlfriend was shot through the camera. The Judge held that the defendant must have known the gun was loaded. The Judge also held that, in any event, it was extraordinarily reckless to pose with the gun pointed at the girlfriend’s head. The Judge considered the unlawful use of a weapon, in the absence of a firearms licence, increased culpability. The Court adopted a starting point of five years’ imprisonment.

[24]   In R v Sanft,13 the defendant pointed a firearm at his young daughter from close-range and pulled the trigger and killed his daughter. The Judge said the defendant was more familiar with the weapon than the defendant had been prepared to accept. The Judge also accepted that the defendant had failed to ensure the gun was not loaded, had failed to ensure the safety catch was on, had loaded the gun in close proximity to his daughter, had pointed the gun at his daughter and had pulled the trigger. The Judge considered the defendant’s negligence to have been extreme. The Judge adopted a starting point of five years.

[25]   In R v Fepuleai,14 the defendant jokingly pointed a gun at his cousin after he had been drinking with family members and pulled the trigger, not knowing that a friend had reloaded the gun after the defendant had been handling it with the magazine removed. A starting point of four and a half years’ imprisonment was adopted.

11     R v Gideon [2015] NZHC 2333.

12     R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.

13     R v Sanft [2017] NZHC 2164.

14     R v Fepuleai [2013] NZHC 2204.

[26]   In R v Sutcliffe,15 the defendant had also been drinking with friends, some of who had also used a Class B drug. The defendant had been presented with the gun by the victim, who knew gun was loaded. The defendant pointed the gun at the victim and pulled the trigger while asking whether it was loaded. The gun discharged as the victim responded that it was, and the victim died. The defendant attempted to conceal the gun at the scene and provided false information during several subsequent interviews. The Judge adopted a starting point of four and a half years’ imprisonment.

[27]   In R v Williams,16 the defendant pointed a gun at his friend outside during a drinking and drug-taking session and fired a shot in the victim’s general direction. The shot caused fatal injuries. The defendant claimed he thought the gun couldn’t kill humans and that he intended to aim it at a tree stump. The Court adopted a starting point of four years’ imprisonment. That included an uplift of four months to account for the defendant earlier brandishing the gun on the motorway.

[28]   I agree with Ms Cull that your offending is not the same or as serious as any of these cases. You did not aim the gun at Mr Tahere. I accept that you did not know that that gun was loaded. No alcohol or drugs were involved. After the event, you did not seek to avoid responsibility for what happened, and you did not convey any false information to the police.

[29]   The significant aggravating features of your offending are that you were in possession of a weapon which, in its modified configuration, had no lawful purpose, you recklessly produced the gun to your young cousin and proceeded to examine it with him in circumstances that caused the gun to discharge and kill your cousin. It has not been established that you were responsible for the modification of the gun, or that you knew of its dangerous condition with a jammed safety catch or that you loaded the gun or that you pulled the trigger deliberately. In these respects, I do not agree with the Crown that your actions involved premeditation.

[30]   However, it is self-evident that you behaved recklessly in possessing and bringing to your cousin’s house an unlawful, modified weapon. You compounded that

15     R v Sutcliffe [2017] NZHC 2882.

16     R v Williams [2013] NZHC 3173.

recklessness by playing around with the gun in the confined environment of your car. Whether or not you pointed the gun at Mr Tahere and deliberately pulled the trigger, you were the one who created the circumstances that caused his death and you were the one in control of the gun that killed him. If not for your actions, Mr Tahere would be alive today. That Mr Tahere asked to see the gun and joined you in the reckless handling of the gun does not change those realities.

[31]   The fact you did not hold a firearms licence increases the culpability of your offending. The reason the law requires people to obtain a firearms licence and to undergo a firearms safety course is to prevent senseless accidents such as this.

[32]   For these reasons, and having regard to the starting points adopted in other cases, I consider a starting point of four years’ imprisonment is appropriate to reflect the seriousness of your offending.

Personal factors

[33]   Mr Adlam-Kiro, I now consider the aggravating and mitigating factors personal to you as an offender.

[34]   The Crown accepts there are no personal aggravating features warranting the imposition of an uplift. As to mitigating features, the Crown recognises your guilty plea and time spent on bail since 27 February 2020, and your remorse as shown at the restorative justice conference.

[35]   Ms Cull submits that your youth, your lack of previous convictions, your cultural background and sense of whakamā, your genuine remorse, and the steps you have taken to “right the wrong” through the restorative justice process, and your record of compliance with strict bail conditions over an extended period warrant a discount of between 35 and 40 per cent. Ms Cull also submits that a further discount of 25 per cent should be made in recognition of your guilty plea. Under the approach mandated in Moses v R,17 this would result in a total discount of between 60 and 65 per cent.

17     Above n 5.

Analysis

[36]   I accept there are no personal aggravating factors. I also accept there are a number of personal mitigating factors to consider.

Youth18 and previous good character19

[37]   The Court of Appeal has recognised that an offender’s youth may be relevant in assessing their offending in three ways.20 First, scientific research shows that young people are more vulnerable to outside pressures and negative influences, including peer pressure, and their decision-making may be more impulsive.21 Secondly, the effect of imprisonment on young people is disproportionately harsh.22 Third, young people may have greater capacity for rehabilitation.23 The pre-sentence report identifies that, because of your age, Mr Adlam-Kiro, you may be negatively influenced by anti-social associates should you spend any considerable time in prison.

[38]   You have no prior convictions. When asked to identify what led to your offending, the pre-sentence report writer records you responded, “the environment, associates and poor decision-making.” The report records that you recognised with hindsight, Mr Adlam-Kiro, you could have made different decisions, that you know what you did was wrong, and you know what to do to make it right. Alcohol and drugs did not factor in your offending. The pre-sentence report finds that you may benefit from counselling over time, however, if a sentence of home detention is imposed.

[39]   You were born in Kawakawa, and are of Ngāpuhi and Ngati Mahia descent. You affiliate to the Te Huruhi Marae at Awarua. You have five siblings and three whāngai siblings. You grew up in Kaikohe and Tautoro. Your parents separated soon

18     Sentencing Act 2002, s 9(2)(a).

19     Sentencing Act 2002, s 9(2)(g).

20     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]-[79].

21     Ibid.

22     Ibid.

23     Ibid.

after your birth. Your father, who has lived in the South Island for a number of years, has not played a large part in your life, although he has written a letter in support.

[40]   Even so, you told the pre-sentence report writer that you had a “really good childhood, always with family and cousins”, and that you were not a victim of any violence in your growing years. You have been in a relationship for four years and have no children. In terms of your education and work, you completed your schooling up until year 12, when you left to start working on and off, doing building with your mother’s partner. You report that you found learning at school hard but that you would like to study business in the future. You describe yourself as a reliable and hard worker with a good ethic.

[41]   Your mother has written a loving and supportive letter that explains your personal, whānau and cultural background, including the development of your close relationship with Mr Tahere, as well as the difficulties you experienced at school when sent to Auckland. She and a number of others have also written about your skills and success as a kick boxer and the support you have given to others in this and in other fitness related activities. You are clearly talented and have impressed others with your skills and your character.

[42]   Mr Adlam-Kiro, for your youth and your good character, I consider a discount of 10 per cent is appropriate.

Remorse24 and restorative justice25

[43]   I accept that you are genuinely and sincerely remorseful for what has happened, even if you have found it difficult to discuss what happened with others because of your sense of whakamā. It is evident that the restorative justice process was painful and difficult for you and for Mr Tahere’s parents, but you went through with it. You fronted up to what you had done, and you apologised for what happened.

24     Sentencing Act 2002, s 9(2)(f).

25     Sentencing Act 2002, ss 9(2)(f) and 10(c) and (d).

[44]   Aroha Tahere accepted your apology. Lehi Tahere acknowledged how hard it was for him to come to terms with what had happened but thanked you and said he appreciated you. He accepted that what had happened had been an accident. You agreed to engage in appropriate support to deal with your grief, to seek support for firearms awareness, to awhi in the care and maintenance of Mr Tahere’s gravesite and to support and awhi the Tahere family.

[45]I consider that these factors warrant a further discount of 20 per cent.

Time spent on bail26

[46]   The time you have spent on bail is a relevant mitigating factor. A sentencing discount is usually only available where the bail conditions are “very restrictive”.27 As an alternative, I can take into account your time spent on bail when considering whether to impose a non-custodial sentence such as home detention.28 You have adhered without issue to your restrictive EM bail conditions since 27 February 2020. I am satisfied it is appropriate to take account of this. I will do so at the stage of assessing whether a sentence of home detention should be imposed.

Guilty plea29

[47]   I consider a further discount of 25 per cent is appropriate for your guilty plea. You pleaded guilty early in the process, the day after the summary of facts had been agreed between your counsel and the police.

26     Sentencing Act 2002, s 9(2)(h).

27     Winkelmann v R [2010] NZCA 215 at [21]; BB (CA732/12) v R [2013] NZCA 139 at [16].

28     For example, see R v Edwards [2008] NZCA 205 at [15].

29     Sentencing Act 2002, s 9(2)(b).

Total uplifts and discounts for personal factors

[48]   Taken together, these discounts come to a total discount of 55 per cent, or just over 26 months. That brings your final sentence on the manslaughter charge to one year and eight months’ imprisonment.

Arms Act charge

[49]   On the Arms Act charge, I consider a sentence of ten months’imprisonment to be appropriate, having regard to the fact that you were in possession of a weapon which, in its modified state, could have no lawful purpose. A sawn-off shot gun has no value as a hunting weapon. Its only purpose is to intimidate, to threaten and to kill.

[50]    I consider that this sentence should be served concurrently with your sentence of manslaughter.

Home detention

[51]   Because each of these sentences is less than 24 months’ imprisonment, you are eligible to be considered for sentences of home detention.

[52]   I am satisfied that such sentences are appropriate in your case, despite the primary recommendation in the pre-sentence report that you be sentenced to a term of imprisonment. The report also notes that home detention may also be a suitable option.

[53]   You are a young man with no previous criminal record. You will carry with you for the rest of your life the burden of knowing you are responsible for the death of your cousin and friend. That is a major burden to bear. You will need help and support that would not be easy to find in the prison environment. You are a young man of some skill and talent. I am satisfied there is a much better chance that you will make something of your life if you are able to bond with your whānau, including

Mr Tahere’s family, than if were you faced with the pressures and the alienation that is intrinsic to a sentence of imprisonment.

[54]   Most of all, I am mindful of the clear wishes expressed by Mr Tahere’s mother, both in her victim impact statement and at the restorative justice conference, that she does not want you to go to prison because of what happened to her son, your cousin and friend. Both parents emphasised at the restorative justice conference that Tawhirimatea forgave you before he died and called on them to forgive you and to support you. As Mr Smith said, the views of the victim’s family and, indeed, if the victim himself cannot direct the sentence the Court imposes but they are matters to be taken into account.

[55]   Given the seriousness of your offending, I do not consider that I should simply divide by two the notional sentence of imprisonment when setting the term of home detention on the manslaughter charge. On the other hand, it is appropriate to take into account the fact you have already spent nearly eight months on restrictive bail conditions.

[56]   Your current bail address at 13 Tui Grove has been assessed as suitable for home detention; your mother, step-father and sister have also been assessed as suitable and have confirmed their consent to your being sentenced to that address. You have also confirmed your understanding and acceptance of the requirements of home detention. The pre-sentence report says you present with no barriers to compliance with an electronically monitored sentence and have successfully complied with your strict EM bail conditions since 27 February 2020.

Sentence

[57]Mr Adlam-Kiro, please stand.

[58]   On the charge of manslaughter, I sentence you to home detention for a period of ten months.

[59]   On the charge of the unlawful possession of a firearm, I sentence you to home detention for a period of five months.

[60]   These sentences are to be served concurrently at the home detention address specified in the pre-sentence report.

[61]   The sentences are on the standard conditions set out in s 80C(2) of the Sentencing Act and the special conditions recommended in the pre-sentence report.

[62]    Although I make no formal condition in this regard, I emphasise to you,     Mr Adlam-Kiro, that you have made a commitment to Mr Tahere’s family to continue to engage with them in the restorative justice process. I urge you to live up to that commitment. Your future contentment and theirs may depend on it.

[63]Mr Adlam-Kiro, you may stand down.

G J van Bohemen J