R v Afamasaga

[2014] NZHC 2142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-000475 [2014] NZHC 2142

THE QUEEN

v

CALEB ELI AFAMASAGA KEVIN TERRENCE BANABA JOSHUA MAKALIMA EDGAR LALONI

SOSAIA LALONI SAMUEL LACHMAIYA

Hearing:	5 September 2014
Appearances:	W Cathcart, A Longdill and H Musgrave for the Crown P Hamlin for Defendant Afamasaga M Pecotic for Defendant Banaba M Wharepouri for Defendant Makalima M Clark and E Davis for Defendant Edgar Laloni A Holland for Defendant Sosaia Laloni G Gotleib for Defendant Lachmaiya
Sentence:	5 September 2014

SENTENCING REMARKS OF WOOLFORD J

R v CALEB ELI AFAMASAGA KEVIN TERRENCE BANABA JOSHUA MAKALIMA EDGAR LALONI SOSAIA LALONI SAMUEL LACHMAIYA [2014] NZHC 2142 [5 September 2014]

Introduction

[1]      Gentlemen,  you  each  appear  today  for  sentence  on  convictions  entered against you following the death of Mr Daniel Turner and the shooting of Mr Jason Mataio on 18 December 2012 at Afton Place, Ranui.   Save for the guilty pleas entered  by Mr Samuel  Lachmaiya,  you  were each  found  guilty by jury verdict returned on 3 July 2014 after a five week trial.

[2]      Mr Caleb Afamasaga and Mr Kevin Banaba, you were found guilty of the murder of Mr Turner and of wounding Mr Mataio with intent to cause grievous harm to  him.    Mr  Joshua  Makalima,  you  were  found  guilty  of  the  manslaughter  of Mr Turner.  Mr Edgar Laloni and Mr Sosaia Laloni, you were each found guilty of being an accessory after the fact to the murder of Mr Turner.  Mr Lachmaiya, one week before trial you pleaded guilty to being an accessory after the fact to  the murder of Mr Turner and to one charge of possessing a firearm on 16 December

2012.

[3]      In addition to those charges each of you, except Mr Afamasaga, appear for sentence on one representative charge of selling cannabis to which  you pleaded guilty in the District Court on 22 July 2014.   I now formally enter convictions against you all except for Mr Afamasaga on that charge.

Background

[4]      Mr Afamasaga, Mr Banaba and Mr Makalima, you are patched members of the King Cobra gang.   At the time of the shooting on 18 December 2012 you, Mr Afamasaga, were a prospect of the gang, but you have since become a patched member.  The victim, Mr Turner, was the leader of a rival group.  Two days before the shooting a confrontation between the groups occurred at Kingsdale Reserve. There you, Mr Afamasaga and Mr Makalima, were humiliated when, outnumbered by the opposing group, you were forced to run away from a fight.  That incident was part of rising tensions between the two groups around this period.

[5]      The Crown’s theory at trial was that you two and Mr Banaba formed a plan

on the evening of 16 December to exact retribution on Mr Turner, who had stepped

forward as leader of the opposing group, by shooting him.  The plan was initially to shoot up Mr Turner’s house with a .22 calibre rifle to which you had access.  Text message records suggest that you, Mr Afamasaga, went to some effort to obtain ammunition for the rifle and you had obtained a bag of bullets by the evening of

17 December.

[6]      At 7.00 p.m. on 17 December you texted that you were “ready 2 rol” to Mr Turner’s house.   That plan was abandoned when it was ascertained there were children at Mr Turner’s house.  The modified plan was to use a woman, who gave evidence at trial, Ms Brittany Bayne, to lure Mr Turner away from his house and set him  up.    That  plan  had  not  been  executed  when  Mr  Turner  and  three  others (including Mr Mataio) drove to Afton Place and parked near the Laloni brothers’ house at Afton Place on the night of 18 December.

[7]      Mr Turner’s arrival was not entirely unexpected, according to the Crown, as a car window had been smashed at Mr Turner’s house earlier that day.  That was partly a response to Mr Turner throwing an axe through the window of a car parked at Afton Place sometime earlier.   In any event, on that night the occupants of Afton Place were on edge.  Mr Afamasaga, you had the .22 calibre rifle loaded with bullets obtained the day before.  As Mr Turner walked up the driveway to the front door intent on confronting the occupants, you, Mr Afamasaga, shot at Mr Turner.   The bullet pierced his heart and he died at the scene.  Two other bullets were fired, one of which hit Mr Mataio, who had just stepped out of the car to help Mr Turner, in the leg. The other bullet was never found.

[8]      Your respective roles were as follows.   Mr Afamasaga, you instigated the plan to shoot Mr Turner.  You had been humiliated at Kingsdale Reserve and sought retribution.  Mr Afamasaga reported to you, Mr Banaba, as leader of the group, and you, Mr Makalima, also encouraged Mr Afamasaga.  In returning a verdict of guilty for each of you, the jury accepted the Crown’s broad characterisation of events. Specifically,  the  jury  rejected  your  contention,  Mr Afamasaga,  that  you  shot  at Mr Turner and Mr Mataio in self defence.  You gave evidence that you were scared of Mr Turner, who had a formidable reputation, and that you feared for your life.  In the dark on 18 December you thought you saw a pistol in Mr Turner’s hand and you

fired three times in self defence.  The numerous text messages sent that set out the plan to shoot Mr Turner were, on defence submissions, a lot of hot air.  Clearly that picture of events cannot stand in light of the jury’s verdict.

[9]      Mr Edgar Laloni and Sosaia Laloni, you were present at the house where the meeting took place on 16 December at which the plan to shoot Mr Turner was hatched, but there is little or no evidence of your involvement in it.   Mr Edgar Laloni, you picked up Mr Afamasaga from a neighbouring street and drove him away from the scene of the shooting.  In addition, you texted your brother telling him to get rid of the “bullets”. The next day you snapped your phone’s sim card.

[10]     Similarly you, Mr Sosaia Laloni, also snapped your sim card.   You were present at Afton Place at the time of the shooting and led Mr Afamasaga away from the crime scene, before arranging for your brother to pick you up and drive you away.  Mr Lachmaiya, you were present at discussions to organise false alibis for the night of 18 December and you further, may well have disposed of some evidence of the offending.

[11]     In addition, each of you, save Mr Afamasaga, has pleaded guilty to one representative charge of selling cannabis.   This charge arose out of activities that occurred, both prior to and after the shooting of Mr Turner.  It appears that you had a reasonably sophisticated cannabis business operating out of Afton Place.  Business cards were distributed to members of the public in shopping malls and other public areas.   Customers seeking cannabis would then telephone a printed number, place their orders, and cannabis would be delivered to those persons by vehicle.

[12]     Mr Edgar Laloni, Mr Sosaia Laloni and Mr Lachmaiya, you were responsible for the physical operation of the business.  Mr Banaba and Mr Makalima, you took a supervisory role and the majority of the profits from the venture.   Following the death of Mr Turner, Police visited Afton Place and located 23 cannabis tinnies in a snaplock  bag.    You,  Mr  Edgar  Laloni  and  Mr  Sosaia  Laloni,  moved  in  with Mr Lachmaiya and continued to operate the business from his address at Universal Drive, Henderson.

[13]     The business continued until 23 January 2013, when Police executed search warrants at Mr Lachmaiya’s address.   Police located approximately 120 cannabis bullets, 8 ounces of bulk cannabis, as well as a number of business cards with the cannabis hotline printed on them.

Victim impact statements

[14]     First  I  turn  to  the  victim  impact  statements  of  Ms  Desrae  Kiri,  who  is Mr Turner’s mother, and Mr Mataio.  Ms Kiri is present today.  She was close with her  son  and  has  expressed  the  extreme  grief  the  loss  of  her  son  has  caused. Physically she is in ill health and finds herself unable to sleep.  As grandmother she looks after Mr Turner’s children full time and financially she is struggling with the burden.

[15]     Mr Mataio suffered a bullet wound to the leg and describes the pain he felt as excruciating.  He was shocked by the shooting and emotionally he has suffered the loss of a friend.   He expresses guilt as being lucky to survive when Mr Turner’s family has had to deal with the fallout from Mr Turner’s death.

Approach to sentencing

[16]     In sentencing each of you today, I must take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002.  The approach I take will involve setting what is known as the starting point for your offending before considering any relevant aggravating or mitigating features personal to you.1

[17]     Mr Afamasaga and Mr Banaba, murder is the most serious crime on the books in New Zealand and earns a sentence of life imprisonment except in exceptional circumstances.2     Mr Afamasaga, in killing Mr Turner you have done untold harm to Mr Turner’s family and the community, and Mr Banaba, in encouraging Mr Afamasaga to do so, you have done the same.   The offending is aggravated by the fact that a gun was used to resolve what appears to be a gang

dispute.  The killing was undoubtedly premeditated.  For reasons that will follow, I

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

2      Sentencing Act 2002, s 102 and s 8(b).

consider there is some basis to distinguish between the two of you and I propose to sentence you on a slightly different footing.

[18]     Mr Makalima, the jury found you guilty of manslaughter for your role in the killing.  That result reflects what the jury obviously thought was your lesser role in the offending and the impact of your hypoxic brain injury, which may have affected your understanding of events.   Manslaughter attracts a maximum sentence of life imprisonment, but the Court almost invariably imposes a lesser sentence.3

[19]     Mr Edgar Laloni, Mr Sosaia Laloni, and Mr Lachmaiya, your conviction for being an accessory after the fact to murder is derivative in nature and accordingly you will receive a much lesser sentence than the principal offence.  I have received reports on the suitability of home detention for each of you, which I will consider in due course.

[20]     In addition, there are the convictions for cannabis for all but Mr Afamasaga. The sentence for that charge will necessarily be cumulative as it was different in kind.  Mr Lachmaiya, you also face a charge of possessing a firearm, which in the circumstances is unconnected to your principal offending and will therefore also be considered cumulatively.

Caleb Afamasaga & Kevin Banaba

Pre-sentence reports

[21]     Mr  Afamasaga  and  Mr  Banaba,  I  turn  to  your  pre-sentence  reports. Mr Afamasaga, you are 25 years old.  You grew up in Te Atatu with your mother, who separated from your father when you were three years old. You became a father at age 17 and have two daughters aged 8 and 4.  You are currently single and prior to being  remanded  in  custody  you  were unemployed.    In  the  past  you  have been assessed as having a harmful pattern of alcohol abuse.   Your conviction record details 13 previous convictions.  A number of them disclose a propensity towards violence, but all are relatively minor compared to your present offending.

[22]     You continue to maintain that the shooting of Mr Turner and Mr Mataio was not premeditated, that you acted in self-defence and you did not intend to cause Mr Turner’s death.   Despite that, you express remorse for causing his death: you have expressed sympathy to Mr Turner’s family and are willing to make amends through financial reparation for funeral costs.  The writer assessed your remorse to be genuine.

[23]     You acknowledge your involvement in the King Cobra gang has, to an extent, caused your criminal offending.   At a young age you joined a youth gang before joining the King Cobras. You deny the allegation by the Crown that you earned your patch for murdering Mr Turner.  You report leaving the gang recently, but I note that most of your friends and associates are affiliated with the gang.

[24]     Mr Banaba, it is your birthday today and you are now 26.  You grew up in South Auckland in a King Cobra household as one of 10 siblings. Your father, brothers, uncles and cousins are all members of the gang.4    You joined the King Cobra gang in your early 20s and consider it to be a family.  Prior to being placed in custody, you lived with your partner of nine years in Henderson.  You have worked as a barber in Otahuhu and have helped raise your partner’s two children.  You have

no harmful pattern of drug or alcohol abuse.   You maintain that you had no involvement in the events leading up to Mr Turner’s death and you did not encourage Mr Afamasaga to shoot Mr Turner.   Despite that, you report that peace has been made between your family and the Turner family.

[25]     Your criminal record is short and minor.  Given your short conviction history, the report writer assesses you as having a low likelihood of reoffending, but in light of your current offending assesses your risk of harm to others as high.

[26]     In  addition,  I  have  received  and  read  a  very  large  number  of  positive character references from counsel for both you and Mr Makalima, all of which attest to your good character.  There is one from your aunt, your older sister, your pastor, a family friend who works in Corrections, a youth worker who knew you as you grew up, and a friend who says you helped out when he was homeless, and a number of

other friends.  These positive references and your short criminal history place your offending in context and suggest that it is best described as having been a substantial departure from your past conduct and behaviour.

Period of imprisonment

[27]     Mr Afamasaga and  Mr  Banaba,  you  will  be sentenced  to  a term  of life imprisonment.  Counsel for you, Mr Banaba, has submitted that the presumption for life imprisonment should not apply in your case.  The basis of that submission is that you were not present at the time of the shooting, you did not obtain the gun or ammunition, you did not have contact by text with Mr Afamasaga in the 24 hours before the shooting, and your circumstances are on an equal or less footing with Mr Makalima, who was found guilty of manslaughter only.

[28]     While those facts are relevant in setting the minimum period of imprisonment to apply in your case, I do not consider this to be a case where a sentence of life imprisonment is manifestly unjust.  It is clear from the text message evidence, that from 16 December onwards you encouraged Mr Afamasaga to shoot Mr Turner.  The texts on the night of 17 December suggest that Mr Afamasaga was looking to you for guidance and you instructed him on the proper approach.  In those circumstances, a sentence of life imprisonment is not manifestly unjust, but rather reflects the need to hold you to account and denounce your role in the death of Mr Turner and injury to Mr Mataio.

[29]     The only issue to be determined is the appropriate length of the minimum period of imprisonment (MPI).  The Crown submits that s 104 of the Sentencing Act

2002 applies.  Section 104 states that the Court must impose a MPI of 17 years in certain exceptional  cases unless it is manifestly unjust to do so.   One of those circumstances is when the murder involves calculated or lengthy planning.5     The planning does not have to be competent or sophisticated, but there must be a high degree of preparation evidenced by the time over which the planning took place or because of the degree of thought put into the murder.6    The mere fact a killing is

premeditated is not enough.7   The focus must be on the detail of the planning and the time period involved.8

[30]     Here text message evidence shows that the shooting was premeditated.  At the outset, Mr Afamasaga texts Mr Banaba “Il kil 4 thm” to which Mr Banaba responds  “My  man  uso”.    On  the  night  of  16  December,  Mr Afamasaga  texts Mr Banaba  saying  he  was  getting  fuel  for  the  lawnmower.    Lawnmower  is  a reference to the .22 rifle used to shoot and kill Mr Turner.   Fuel is a reference to bullets.     The  next  day,  at  6.00 p.m.,  Mr  Afamasaga  texts  Mr Makalima  and Mr Banaba  saying  that  he  has  bullets  and  is  ready  to  roll.    Mr Banaba  texts Mr Afamasaga telling him to “cut it real low”.  Mr Afamasaga replies saying “I wil. Chop it ryt down so it wnt grow 4 lng time”.

[31]     In my view these are clear references to shooting Mr Turner on the day before his actual death.  Later the same night when informed that there are kids at Mr Turner’s house, Mr Banaba texts “oh dam” and tells Mr Afamasaga that he would be better to sort out Ms Bayne to line Mr Turner up.  Later there are texts between Mr Afamasaga and Mr Makalima to the same effect.   There is a further text from Mr Banaba that night suggesting that Mr Turner’s garage be shot up in order to incite retaliation. The next day the Turner family vehicle was damaged instead.

[32]     In those circumstances the Crown submits that the plan falls within s 104(b). The plan was hatched at the meeting on the evening of 16 December, involved the acquisition of bullets for a firearm, was specifically targeted against Mr Turner, contemplated Mr Afamasaga as the shooter, and involved ongoing communication to ensure Mr Banaba as leader was constantly appraised of developments.  After the original plan did not work out it changed to draw Mr Turner to the Afton Place address.

[33]     In response, counsel for Mr Afamasaga submits that this is not one of those truly exceptional murders that engages s 104 and the 17 year non-parole period.  The two day window in which the planning occurred is not, in counsel’s submission,

“lengthy” planning.  Further, it is submitted that the text messaging does not reflect the  reality  of  the  situation  and  could  be  said  to  demonstrate  the  inability  of Mr Afamasaga and others to organise and plan, save for attaining the ammunition. The incidents such as the damaging of Mr Turner’s vehicle were merely tit-for-tat and did not reflect a calculated plan to lure Mr Turner to Afton Place.

[34]     The issue comes down to the facts.  I note that the only real preparatory step taken by the group was to obtain ammunition for the rifle.  In addition, I agree with defence  counsel  that  the  damaging  of  Mr  Turner’s  vehicle  on  the  morning  of

18 December was not done as part of a plan to lure Mr Turner to the Laloni residence at Afton Place.  It was done in retaliation for the damage done to the Laloni vehicle and was part of a wider context of rising tension between the King Cobras and Mr Turner’s group.

[35]     Mr Afamasaga’s visit to the Laloni residence at Afton Place on the night of

18 December was brief.  He visited their house to enable one of that group to take a shower.   He did not specifically go there for the purpose of shooting Mr Turner. While there was a real risk that Mr Turner would turn up at Afton Place, as he had done earlier that day, his appearance was not part of a planned and coordinated series of events.   In my view, Mr Afamasaga, you took advantage of the situation and seized the opportunity to shoot Mr Turner in circumstances that were unplanned, but not entirely unexpected.  If Mr Turner had not turned up, there is a real likelihood that the tensions between the two groups would have dissipated, in which case the plan  to  use  Ms  Bayne  to  set  up  Mr  Turner  may  not  have  gone  ahead.    If Mr Afamasaga had not happened to be at Afton Place at the same time as Mr Turner there is a real chance that Mr Turner would still be alive today.

[36]     In those circumstances, I do not consider the murder was calculated in the cold-blooded and exceptional manner required by s 104 of the Sentencing Act and evident in cases cited by the Crown.9   Similarly, I do not consider the planning was of  such  length  to  trigger  s  104.    Here  events  developed  quickly  following  the

humiliation at Kingsdale Reserve.  The makeshift plan was formed 48 hours before

9      R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010; R v Lisiate HC Auckland CRI-

2009-044-2878, 16 December 2011.

the shooting.   That period of time is noticeably less than the week of planning in Pandy-Johnston v R.10    This case is most close to R v Bucknall, but even then the plan developed over a four day period.11

[37]     I turn therefore to consider the appropriate minimum period of imprisonment. The Crown submits that a MPI of 14 to 15 years imprisonment is necessary given the circumstances of the shooting and in order to fulfil the purposes and principles of sentencing.12    Defence counsel disagrees.  Counsel for Mr Afamasaga submits that an appropriate MPI is 12-13 years.13     Counsel for Mr Banaba requests a MPI of

10 years.14

[38]     First, as I have already alluded to, it is appropriate in my view to distinguish between the roles of Mr Afamasaga and Mr Banaba.  Although the general rule is that a party is just as culpable as the principal offender, counsel for Mr Banaba is correct that a party’s culpability or degree of involvement may call for a lesser

sentence.15     I find the comments of Miller J in the case cited by counsel,  R v

McNaughton, to be relevant given what was, in my view, your lesser role in the events leading up to the shooting.16

[39]     Whether it is appropriate to distinguish between parties comes down to the facts.   Here there is no doubt that you, Mr Banaba, encouraged Mr Afamasaga to shoot Mr Turner.  It is also clear that you were the most senior member of the group from whom Mr Afamasaga sought guidance.  However, Mr Afamasaga was the one who was humiliated at Kingsdale Reserve and was the one who, in my view, instigated  the  plan  to  shoot  Mr  Turner.    Mr  Banaba,  you  were  not  present  at Kingsdale Reserve, nor were you present at the time of the shooting at Afton Place.

Rather, you were with your family visiting the Christmas lights at Franklin Road.

10     Pandey-Johnston v R [2012] NZCA 595.

11     R v Bucknall CA248/01, 18 December 2001.  This case was decided before the Sentencing Act

2002 came into force but it is listed in Adams on Criminal Law as a comparable s 104(b) case: Bruce Robertson (ed) Adams on Criminal Law (online ed, Brookers) at SA104.01.

12     Sentencing Act 2002, s 103(2); citing R v Bucknall, above n 13, R v Moala & Ors HC Auckland

CRI-2006-092-461, 12 December 2007, and R v Mills HC Palmerston North CRI-2009-054-

3808, 16 June 2010.

13     Citing R v McNaughton [2012] NZHC 815.

14     Citing R v McNaughton and R v Karaka HC Wellington CRI-2008-091-4694, 15 May 2009.

15     R v McNaughton, above n 15 at [16].

16     R v McNaughton, above n 15 at [9].

You did not obtain the gun or the ammunition and the text contact you had with Mr Afamasaga was limited insofar that there was none in the 24 hours prior to the fatal shooting.

[40]     The  jury  chose  to  distinguish  between  Mr  Banaba  and  Mr  Makalima. However, in my view that difference was not in the actions you took, but the lack of intention or foresight by Mr Makalima, perhaps due to his brain injury.  In all the circumstances, I consider that your messages of encouragement and support do not disclose the same level of culpability which applies to Mr Afamasaga, and I propose to sentence you accordingly.

[41]     As noted, I consider this case is similar to R v Bucknall.17   That case involved a drive by shooting in response to a gang fight that occurred four days before.  The sentencing Judge in that case described the offending as a carefully planned and premeditated execution.18     There are some similarities here, particularly the premeditation, the use of a firearm, and the risk to public safety caused by the attack. In addition, your motivation, namely to exact retribution on Mr Turner and restore your reputation  as fighters, provides further analogy to  that case.   This case is however aggravated by the additional shooting of Mr Mataio, who was lucky, in my view, to be hit only in the leg.   I note that another bullet was fired that remains unaccounted for.

[42]     Here   the   jury   declined   to   accept   Mr  Afamasaga’s   view   of   events. Mr Afamasaga, you shot Mr Turner through the heart in a manner similar to that in Bucknall.  In addition, I note that Bucknall was decided before the new Sentencing Act came into force, which sought to increase sentences for murder.  In this case, the actual shooting may have been brought on by Mr Turner’s arrival at Afton Place and was in that sense reactive, but the text message evidence discloses a high level of premeditated  targeting  of  an  individual,  which  may not  amount  to  the  level  of

planning required by s 104(b), but is nevertheless a significant aggravating factor.

17     R v Bucknall, above n 13.

18 At [9].

[43]   For those reasons, I consider that an uplift of the minimum period of imprisonment is required for both of you.   However as discussed, I think there is good  reason  to  distinguish  between  the  two  of  you  as  in  my  assessment, Mr Afamasaga’s culpability is greater than that of Mr Banaba.   Mr Afamasaga, in your case, I consider that a MPI of 14 years imprisonment is justified.  Mr Banaba, in your case I consider that a MPI of 11 years imprisonment is appropriate.

Joseph Makalima

[44]     I  turn  now  to  Mr  Makalima.    Mr  Makalima,  your  pre-sentence  report discloses that you are 24 years old and of Nuiean and Cook Island descent.   You were 22 years old at the time of the offending.  You have been in a stable, long-term de facto relationship for five years.   Before you were remanded in custody you worked as a car tinter and prior to that you were the caregiver for your grandmother in South Auckland.

[45]     You have no criminal history except for a notation in the Youth Court in

2006.    Despite  that,  the  report  writer  has  assessed  your  risk  of  harm  to  the community as high due to your associates and status as a patched member of the King Cobra gang.  While maintaining that you had no knowledge of any plan to kill Mr Turner, to your credit you have offered to engage in a restorative justice process with Mr Turner’s family.

[46]     Also  relevant  is  your  cognitive  difficulties  and  low  IQ.    A report  from Dr Sakdalan that was requested by your counsel prior to trial, states that you suffer from a mental impairment following from a severe hypoxic brain injury suffered in

2010.  This brain injury means you have problems with memory and recollection.  I note that during the trial special procedures were put into place to ensure you could participate meaningfully in the trial process.

[47]     I have also received and read a number of positive character references.  One is from your sister and details the positive steps you have taken in your life after your brain injury in 2010.   There is another from your elder sister and a family friend, who works in Corrections.   I have also been handed a number of other

references  this  morning,  which  I  have  read  and  taken  into  account.    You  are obviously well liked in the community.

[48]     I  turn  to  submissions  on  sentence.     There  is  no  tariff  decision  for manslaughter.19   Much will depend on the circumstances of the particular offending and on careful comparison with similar cases.  Some guidance may be provided by cross-checking any sentence for consistency with the cases that involve grievous bodily harm,20 but that approach is only useful if serious injury (if not death) was a foreseeable outcome.21

[49]     The Crown submits that a starting point somewhere in the vicinity of 12 years imprisonment is warranted.22   That starting point is primarily based upon your clear involvement  in  the  16-18  December  period  in  inciting,  aiding  and  abetting Mr Afamasaga to shoot Mr Turner.  I note that you were found not guilty of being a party to the offence of causing grievous bodily harm to Mr Mataio.   I accept that event  was  not  foreseeable  to  you  and  in  sentencing  you  for  manslaughter  I

specifically disregard that as an aggravating factor of your offending.

[50]     The defence emphasise that your liability arises out of party liability and given that the jury returned a verdict of manslaughter, the jury must have rejected the Crown’s case insofar as it concerned your state of mind and your knowledge of any intent Mr Afamasaga may have had to kill Mr Turner.   Counsel cites a number of

cases involving persons found guilty of manslaughter on a secondary party basis.23

Your  counsel,  Mr Wharepouri,  further  submits  that  you  were  far  removed  from actual involvement in the planning and execution of the shooting of Mr Turner.  For those reasons a starting point of seven to eight years imprisonment is sought.

[51]     Mr Makalima, in my view your culpability for the death of Mr Turner is relatively  high.    I  refer  to  the  text  message  you  sent  to  Ms  Rose  Fifita  on

17 December saying “[y]ea an dn chuky gna shoot Big D”.  Chuky is a reference to

19     R v Edwards [2005] 2 NZLR 709 (CA) at [13] – [14].

20     R v Tai [2010] NZCA 598 at [11] – [12], R v Taueki [2005] 3 NZLR 372, (2005) 31 CRNZ 769.

21     R v Jamieson [2009] NZCA 555 at [34].

22     Citing Pahau v R [2011] NZCA 147 and R v Moala & Ors, above n 14.

23     Clegg v R [2011] NZCA 473; R v Challis [2008] NZCA 470; R v Wallace HC Wellington CRI-

2007-083-1608, 20 February 2009; R v Parker [2012] NZHC 2458.

Mr Afamasaga, while Big D is a reference to Mr Turner.   Later on you texted Mr Afamasaga saying “G hw we gna get big d”.   In my view the text messages clearly indicate your knowledge and involvement in the plan to shoot Mr Turner, even if you did not know Mr Afamasaga either intended to kill or cause serious bodily injury to Mr Turner.  You actively encouraged Mr Afamasaga with texts such as “Swt do ur thang, afta dat get new fika”.  Fika means a telephone.

[52]     For those reasons I do not consider that you were far removed from the planning of the shooting.  While you were not the leader of the plan nor its executor, you knew what was going on and actively engaged in it.   In those circumstances, limited weight can be placed on the fact that you were not present at Afton Place on the night of the shooting.   Given  your involvement in the preceding two days, serious injury to Mr Turner would ordinarily be foreseeable and therefore some assistance can be provided by reference to the guidelines set in R v Taueki.

[53]     I have considered a number of cases, particularly Pahau v R and R v Challis. Challis involved a drive by shooting of a baby girl in the context of rising gang tensions between rival groups.  The Court of Appeal upheld a sentence of 10 years imprisonment for the persons in the back seat of the car in circumstances where the appellants were aware there was a gang confrontation which involved a planned retaliation, were aware the offender was carrying the gun in the same car as them, gave real encouragement and support to the offender,  and knew that they were

assisting in an offence of the type that actually occurred.24

[54]     On  one  hand,  Mr  Makalima,  you  were  further  removed  from  the  actual shooting than the appellants in that case, but on the other hand, your text messages disclose a degree of lengthy premeditation and involvement in the build up to the shooting of Mr Turner.  In those circumstances and on balance your culpability is, in my view, somewhat similar to the case of Challis.  Accordingly, I consider that a starting point of nine years imprisonment is appropriate in your case.  That result is consistent with band 3 of Taueki.  In setting that starting point, I have had specific regard to your status as a party to the shooting in circumstances where the jury was

satisfied that you did not foresee Mr Turner’s death.

24     Challis v R, above n 23 at [9] and [11].

[55]     I now turn to the cannabis charges.  The guideline judgment of R v Terewi

applies.25   Your counsel accept that your conduct in this offending falls within band

3, attracting a starting point in the range of four years imprisonment or more. However, as the classification of the offending is relevant to the end sentence of your co-offenders, it is necessary at this stage to consider their counsel’s submissions.

[56]     Counsel for you, Mr Edgar Laloni, refer to the lapsed sentence indication provided by Lang J in September 2013 to you and Mr Lachmaiya.26    I agree with Lang  J’s  description  of  the  business  as  a  busy  and  reasonably  sophisticated operation.   It brought in an estimated $10,500 in the two months it was under investigation by the Police.   It operated from two different premises and involved delivery of cannabis to customers following orders placed by telephone.   Lang J appears to have considered the operation to be in band 2 of Terewi.27    A similar submission is made for you, Mr Sosaia Laloni, and for you, Mr Lachmaiya.

[57]     Having considered the cases cited by counsel for Mr Sosaia Laloni,28     I consider that to be the correct estimation of the offending.  Mr Makalima, alongside Mr Banaba, you controlled the operation.   You and Mr Banaba were the brains behind  it  and  you  received  the  lion’s  share  of  the  profits.    Accordingly,  your particular offending is towards the top of the available range and a sentence of three and a half years imprisonment is justified.  There is no further relevant aggravating or mitigating factors.  I note that you pleaded guilty to that charge and accordingly you are entitled to near the full discount for that plea available.29    That leaves a cumulative sentence of two years nine months imprisonment.

[58]     The Crown submits that in light of the long sentence of imprisonment you already   face,   the   uplift   to   apply   cumulatively   should   only   be   two   years

25     R v Terewi [1999] 3 NZLR 62 (CA).

26     R v Lachmaiya & Laloni [2013] NZHC 2288.

27 At [26].

28     R v White HC Christchurch CRI-2010-009-7016, 23 September 2010; R v Baird HC Nelson

CRI-2010-042-1994, 17 August 2010; R v Weir HC Auckland CRI-2011-057-1202, 18 October

2011.

29     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

imprisonment.30    I agree with that submission and accordingly set the end starting point for your offending, Mr Makalima, at 11 years imprisonment.

[59]     I turn now to  your personal circumstances.   Your counsel refers to your relative youth at the time of the offending.31    In my view, no specific discount can apply because the shooting of Mr Turner was planned and was not the plain result of immaturity or impulsive action.   However, I acknowledge your criminal record is clean, save a notation entered in the Youth Court.  I have already mentioned your positive character references which confirm, in my view, that you are supported by a

large and caring network of friends and family.   That network provides hope for rehabilitation for you.

[60]     I also note your slow thought processes, serious brain injury and consequent mental impairment that make it difficult for you to recollect events and sustain concentration.  In  E v R the Court of Appeal said that a mental disorder falling short of insanity may mitigate a sentence if it moderates culpability for the offending or renders a sentence either less appropriate or more subjectively punitive.32

[61]     In my view your mental impairment combined with your relative youth was an operative factor in your decision to aid and encourage Mr Afamasaga to shoot Mr Turner.  However, I also consider that the jury took that into account in finding you guilty of manslaughter, rather than murder.  Accordingly, I do not accept your counsel’s submission that a discount of 12 to 18 months imprisonment should apply. Instead, I propose to discount your end sentence by eight months to reflect your youth, previous good character, positive character references and prospects for future rehabilitation.  Mr Makalima, I come to the end sentence of 10 years four months imprisonment.

[62]     The Crown further seeks a minimum period  of imprisonment of at least

50 per cent of the end sentence.  The Court may impose an MPI when the non-parole period of one third of the end sentence is insufficient for the reasons listed in s 86(2)

of the Sentencing Act.  A minimum term of 50 to 60 per cent for manslaughter cases

30     Sentencing Act 2002, ss 83 and 85.

31     Citing R v Mahoni (1988) 15 CRNZ 428 (CA) at 437.

32     E (CA689/10) v R [2010] NZCA 13 at [68].

is regularly imposed.33     In my view, a MPI of 50 per cent of the manslaughter sentence is justified in this case in order to hold you accountable for your role in Mr Turner’s death and in order to deter you and others from committing similar kinds of offending in the future.34

Mr Edgar Laloni

[63]     Mr Edgar Laloni, I now turn to you.   You are 24 years old and the third youngest child of six.  Prior to your remand in custody you lived with your partner of two years and your 12 month old daughter.  In addition, you have a six year old son. You most recently worked as a cabinet-maker and paint assistant for approximately

12 months.  You accept that you have had in the past a problem with alcohol, but report that you have abstained in the last three months.

[64]     You  have  27  previous  convictions  since  2007.    Only  one  is  for  violent offending, being possession of an offensive weapon, and the majority of which are for breaching conditions of community work, supervision, and bail.

[65]     Counsel have provided me with a number of letters written in support of you. There is a letter from your partner, Anne-Maree Rave, her mother, your older sister, two from your brother-in-laws, your neighbours, who are the aunt and uncle of Mr Turner, a family friend, and the pastor of the Free Church of Tonga.  The letters disclose that you are valued as a supportive and caring person and have changed the direction of your life around since the birth of your daughter.  In addition there is a letter from your former employer, Image Interiors, attesting to your character and expressing willingness to employ you again in the future.  You have also written a letter to the Court in which you express your remorse for your offending.  I accept that remorse to be genuine.

[66]     I turn now to your offending.  The primary offence in my view for you is the charge of selling cannabis.  I accept that your role in the cannabis operation is less

than that of Mr Banaba and Mr Makalima.   You rolled the cannabis for sale and

33     Pahau v R, above n 22 at [90]; R v Laungaue CA32/06, 1 September 2006 at [41]-[42].

34     Sentencing Act 2002, s 86(2)(b)-(c).

delivered it, but received little compensation for doing so.  However, against that you actively participated in the operation and were integral to its function.

[67]   The Crown submit that a starting point of three years imprisonment is appropriate.   However, as discussed previously, I disagree with the Crown’s categorisation of the operation within band 3 of Terewi.  This offending, in my view, is squarely within band 2.  Given that you were not the brains behind the operation nor receiving the benefits of it, in my view, your offending is towards the lower end of band 2 and a start point of two years six months imprisonment is justified.  You pleaded guilty to that charge and your counsel submits, and I accept, that a discount of 20 per cent should apply leaving a sentence of two years imprisonment.

[68]     The  conviction  for  acting  as  an  accessory  after  the  fact  to  murder  is cumulative on that start point.  The Crown have referred me to a number of cases which suggest that a charge of being an accessory after the fact to murder often attracts a sentence of 15 to 18 months imprisonment.35    They submit that you and your co-offenders’ offending is more serious and should attract a start point of two years imprisonment.

[69]     I disagree.  The Crown’s case at trial is that you assisted Mr Afamasaga by driving to Afton Place to pick him up and take him to the scene.   They further suggest that you attempted to tamper with or suppress evidence by sending a text to your  brother  reminding  him  to  dispose  of  the  “bullets”  at Afton  Place  and  by snapping your sim card.   In addition, they say you participated in arranging false alibis for the night of the shooting.

[70]     Having presided at trial, I accept that you knew a fight was brewing, but you did not drive to Afton Place for the purpose of driving Mr Afamasaga away from a murder scene.  The trip was pre-planned.  I accept, however, that the jury’s verdict suggests that you were likely told of the shooting in the car and with that knowledge

drove Mr Afamasaga away from the scene to avoid arrest.

35     R v Graham HC Christchurch CRI-2004-009-2224, 14 September 2004; R v Ovalau and Sheck HC Auckland CRI-2006-092-10484, 13 March 2007; R v Haufono [2014] NZHC 1201; R v Granich [2013] NZHC 2657; R v Tamihana [2014] NZHC 89.

[71]     I also do not place much weight on your actions following Mr Turner’s death. I accept that the reference to “bullets” more likely referred to tinnies in the front bedroom  of  the  house  at Afton  Place,  rather  than  the  ammunition  used  to  kill Mr Turner.   It is also my view that you snapped your sim card and attempted to arrange alibis as much out of self-preservation as in order to suppress evidence against your co-offenders.

[72]     For those reasons I reject the Crown’s submission that there was a sustained and  calculated  effort  to  assist  in  covering  up  the  murder  in  the  days  after  the shooting.     Rather,  in  my  view,  your  assistance  was  limited  to  picking  up Mr Afamasaga  directly  after  the  shooting  in  circumstances  where  a  pickup  was already planned and trying to tamper with or suppress evidence as much for your own benefit as it was for Mr Afamasaga.

[73]     There is no tariff for the offence of being an accessory after the fact to murder.  Much will depend on the circumstances.   In my view, your culpability is low when viewed in conjunction with comparable cases.  In particular, I accept that you only became aware of the shooting when you were driving away.  I consider that a sentence of nine months imprisonment is appropriate in this case.

[74]   Collectively, that leaves an end sentence of two years nine months imprisonment.  The Crown also suggest an uplift should apply of three months to reflect that the charge of being an accessory after the fact occurred while you were subject to a sentence of supervision.  Your counsel, however, informs the Court that you were subject to a sentence of community work, not supervision, at the relevant time.  Accordingly, I do not consider there to be a need for a discrete uplift for your offending.

[75]     I note that you were subject to a 24 hour curfew between January 2013 and August 2013, a period of approximately eight  months.   Although you were not subject to a grant of electronic bail, you were nevertheless required to remain inside your home address for a considerable period.  In addition, between August 2013 and your  remand  in  custody in  July 2014  you  remained on  curfew  with  provisions

allowing you to work.  I consider a further discount of three months imprisonment is appropriate for the restrictive bail conditions.

[76]     Because I propose to impose cumulative sentences, it is necessary for me to have regard to  the principles of totality.36     This requires me to stand back and determine whether an end sentence of two years six months imprisonment properly reflects your overall culpability.

[77]     Having  reflected  on  that  sentence,  I  consider  that  a  sizable  reduction  is required.   I propose to reduce your sentence by six months.   That leaves an end sentence of two years imprisonment.   As the proposed sentence is a short term of imprisonment  an  alternative  sentence  of  home  detention  is  available.37    The discretion to impose home detention is guided by the purposes and principles in the Act.38   It is clear that home detention is a real alternative to imprisonment and has, in itself, a significant deterrent element.39

[78]     I have read the report on the suitability of your address and I am satisfied that it is suitable for the purposes of home detention.   Given my view of your overall culpability in the offending, I consider that the need to deter you for your offending and to hold you accountable for it can be met by a sentence of 12 months home

detention.40   I express some concern at your previous history of breaching orders of

supervision and community detention, but I note that you have not been sentenced to home detention before.  Needless to say, Mr Laloni, that if you decide to engage in similar conduct again, the result will almost certainly be a sentence of imprisonment.

Mr Sosaia Laloni

[79]     Mr Sosaia Laloni, you are 21 years old and you are the second youngest of your siblings. At the time of the offending you were 19 years old.  You do not report having any problem with drugs or alcohol.   Previously you were employed at a

company fitting blaster boards. The manager has expressed willingness to rehire you

36     Sentencing Act 2002, s 85(2).

37     Sections 15A and 80A.

38     Manikpersadh v R [2011] NZCA 452 at [14].

39     R v Iosefa [2008] NZCA 453 at [41].

40     Sentencing Act 2002, s 16.

after you serve your sentence.  I have received a number of character references that attest to your good character.

[80]     Your cannabis offending is materially similar to your brother.   Since you pleaded  guilty at the same time,  I do  not consider it appropriate to distinguish between you in setting that sentence.  In respect to your role as an accessory after the fact to murder, the Crown at trial contended that you led Mr Afamasaga away from Afton Place and arranged a pickup with your brother Edgar with knowledge that Mr Turner had been shot.  I accept, however, that you acted in large part out of self- preservation.  On balance, I consider that your culpability for the offending is much the same as your brothers and a sentence of nine months imprisonment is warranted. That leaves an end sentence of two years and nine months imprisonment.

[81]     I note that you have little prior conviction history. You have two minor traffic convictions.   You clearly have strong family and community support.   I have particular regard to your age at the time of the offending.  You were 19 at the time, and text message evidence demonstrates that you were very much the junior figure in this group.  I consider that at the time of offending you were particularly vulnerable to  outside  pressure  and  the  need  to  provide  for  your  future  rehabilitation  is

paramount.41   Accordingly, having regard to your youth and the need to provide for

totality principles I propose to reduce your sentence by 12 months imprisonment, bringing your sentence to one of 21 months imprisonment.

[82]     I have had regard to the address proposed for home detention.  The address was visited yesterday.  It is your sister and her partner’s address in Glen Eden and they have both pledged their support and signed the relevant consent forms.   The report considers it suitable for the purposes of home detention.   I consider that a sentence of 10 and a half months home detention is appropriate in your case.

Mr Samuel Lachmaiya

[83]     Finally, I turn to you, Mr Lachmaiya.  You are 24 years old and grew up in

West and Central Auckland.   You left school  at 15 and commenced work as a

41     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

butcher.     Your  pre-sentence  report  states  that  you  have  recently  been  made redundant, but counsel advise that your previous employer would be willing to rehire you if financial circumstances permit.  You have a 22 month old daughter with your ex-partner, who is the sister of the Laloni brothers.

[84]     You have a conviction history, the majority of which relates to driving and dishonesty offences as well as convictions for breaching community sentences.  In addition, I note that you were subject to a sentence of community work at the time the present offences occurred.

[85]     You face sentence on the same charges except for an additional charge of possessing a firearm without lawful purpose.  Your position in respect to the charge of selling cannabis and acting as an accessory after the fact to murder is different insofar as you have pleaded guilty to all charges, but your culpability is in my view similar.  I have entered a conviction against you for selling cannabis, but not on the accessory charge or the possession of a firearm charge, to which you also pleaded guilty.  So I now formally enter convictions on those charges to.

[86]     Your role in the cannabis operation was on the same footing as the Laloni brothers,  and  I intend  to sentence  you  accordingly.    In  respect  to  the  death  of Mr Turner, however, you were the leader in discussions to create false alibis and went so far as to try and arrange them with a couple who were friends of yours.  You also had some involvement in conversations relating to the disposal of the remaining ammunition, although I do accept that they were not of significant evidential value. In those circumstances, your culpability is slightly higher than the Laloni brothers and is in the vicinity of 12 months imprisonment.  However, you are entitled to the full  discount  for  your  guilty  plea  and  remorse  shown  for  your  offending. Accordingly, a sentence of nine months imprisonment is appropriate.

[87]     I further accept that an uplift of one month’s imprisonment is necessary to recognise  the  charge  of  possession  of  a  firearm.    However,  standing  back  and applying  principles  of  totality,  I  am  of  the  view  that  a  sentence  of  two  years

10 months imprisonment is out of range having regard to what is, in my view, your minor and peripheral involvement in the offending.  I also have had regard to your

significant steps towards a new life and the efforts that you have made towards rehabilitation.  I consider you have genuine remorse for your offending as evidenced by your guilty plea and as detailed in your counsel’s submissions.

[88]     For  those  reasons  I  reduce  your  sentence  by  13  months  imprisonment, leaving an end sentence of 21 months imprisonment.   The pre-sentence report recommends  home  detention  with  conditions  and  I  agree  that  the  sentence  is available to you.   The proposed address is in Sandringham and has been deemed suitable.     The  current  occupant  is  willing  to  let  you  reside  at  the  address. Accordingly, I intend to impose a sentence of 10 and a half months home detention.

[89]     Gentlemen, please stand.  Mr Afamasaga, I sentence you to life imprisonment for the murder of Mr Turner with a minimum period of imprisonment of 14 years.  In addition, I impose a concurrent sentence of seven years imprisonment for wounding with intent to cause grievous bodily harm to Mr Mataio.  Mr Banaba, I sentence you to life imprisonment for the murder of Mr Turner with a minimum period of imprisonment of 11 years.   I impose concurrent sentences of seven years imprisonment for wounding with intent to cause grievous bodily harm to Mr Mataio and three and  a half  years imprisonment for selling cannabis.   Mr Makalima, I sentence you to eight years four months imprisonment for the manslaughter of Mr Turner and I impose a cumulative sentence of two years imprisonment for selling cannabis.  In other words, the total sentence of imprisonment imposed on you is one of 10 years and four months.   In addition, I impose a minimum period of imprisonment of four years and two months.

[90]     Mr Afamasaga, Mr Banaba, and Mr Makalima, given your convictions for the offences I have detailed, you are now subject to the three strikes law.   I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written warning.

(a)      If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event, the Judge must sentence you to a minimum term of imprisonment.

[91]     Mr Edgar Laloni, I sentence you to 12 months home detention, on the charges of selling cannabis and being an accessory after the fact to murder, to be served concurrently.  Mr Sosaia Laloni and Mr Lachmaiya, I sentence each of you to 10 and a half months home detention  on the charges  of selling cannabis and  being an accessory after the fact to murder, to be served concurrently.   Mr Lachmaiya, in addition, I convict and discharge you on the charge of possession of a firearm.  The home detention sentences are on the conditions set out in the pre-sentence reports with the deletion of the proposed clause 6 set out in Mr Lachmaiya’s report relating

to non-association with his co-offenders. You may stand down.

Woolford J