R v Baker

[2024] NZHC 1427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-090-001966

[2024] NZHC 1427

THE KING

v

TAMIRAH BAKER

Hearing:	31 May 2024
Appearances:	B D Tantrum and C Purdon for Crown J Schlebusch for Defendant
Sentence:	31 May 2024

SENTENCING REMARKS OF LANG J

Solicitors/counsel:

Meredith Connell, Office of the Crown Solicitor, Auckland J Schlebusch/P Syddall, Auckland

R v BAKER [2024] NZHC 1427 [31 May 2024]

[1]    Ms Baker, you appear for sentence having been found guilty by a jury on charges of being an accessory after the fact to murder1 and being in unlawful possession of a firearm.2 At the commencement of your trial you pleaded guilty to charges of dangerous driving and failing to stop.3

Factual background

[2]    I propose to sentence you on the basis of the facts as I find them to be, having been the Judge who presided over your trial.

[3]    The charges were laid as a result of your involvement in events that occurred after the shooting of Mr Benjamin McIntosh on the morning of 3 June 2022. You had been in a relationship with Mr McIntosh for some time before this. The evidence at trial was that the relationship was not without its difficulties.

[4]    During the preceding evening, you had been in the company of Mr Ethan Dodds and Mr Julius Te  Hivaka, the two persons who have been found guilty of    Mr McIntosh’s murder. The evidence at trial satisfies me that during the evening you became aware that Mr McIntosh had won a large sum of money on a gaming machine in a bar. I am satisfied that you passed this information on to Mr Dodds and possibly Mr Te Hivaka.

[5]    At some time before 7 am on the morning of 3 June 2022, Mr Te Hivaka made arrangements to meet Mr McIntosh in the parking area of a park in West Auckland for the purpose of purchasing methamphetamine from him.  Mr Dodds accompanied   Mr Te Hivaka to the park and took with him a loaded firearm. When Mr McIntosh arrived, Mr Te Hivaka and Mr Dodds got into his vehicle. Mr Dodds then produced the loaded firearm with the intention of using it to scare Mr McIntosh into parting with any drugs and cash in his possession. A few moments later, Mr Dodds discharged the firearm in the direction of Mr McIntosh. The bullet entered his shoulder before exiting his torso and lodging in his brain. Mr McIntosh died approximately 48 hours later from this injury.

1      Crimes Act 1961, s 176.

2      Arms Act 1983, s 45(1).

3      Land Transport Act 1998, ss 52A and 114(2) (dangerous driving); s 35(1)(b) (failing to stop).

[6]    Mr Te Hivaka and Mr Dodds then immediately left the park. Mr Te Hivaka dropped Mr Dodds off at his mother’s address in Hillsborough and she then immediately drove him out of Auckland. They did not return until late in the evening on 3 June 2022. Upon Mr Dodds’ return, you and Mr Te Hivaka met him at a service station.

[7]    You then remained in Mr Dodds’ company for the next five days. During this period, you and Mr Dodds stole two vehicles from outside a shopping mall in West Auckland. You then drove to Northland in one of these vehicles. Whilst in Northland, you and Mr Dodds stayed with relatives of yours in a remote rural area.

[8]    On 9 June 2022, you and Mr Dodds arrived at the address where you had been staying only to find the police present. You immediately drove away from the scene and then failed to stop despite several measures the police employed to stop your vehicle. This included the deployment of road spikes. It was eventually necessary for the police to stop your  vehicle by ramming it.  At this point, they placed you and  Mr Dodds in custody. When the police searched the vehicle, they discovered the firearm that Mr Dodds’ had used to kill Mr McIntosh in the rear of the vehicle. You denied that you were in possession of the firearm. The jury’s verdict makes it clear that they were satisfied you were in joint possession of it with Mr Dodds.

[9]    Both counsel have provided me with authorities that they say provide assistance in selecting the starting point for your offending.4 I do not propose to discuss these in any detail because previous sentencing decisions can only provide guidance in relation to the range within which a starting point is likely to fall. This is because the factual matrix of every case is different.

[10]   Of the cases cited by the Crown, I consider R v Duff5 and R v Everitt6 to be the most comparable because they both involve the offender harbouring a murder suspect

4      R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007; R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006; Mr McKenzie was aware another man had been stabbed, but there was no proof he knew that he had later died; R v Te Tomo [2012] NZHC 71; R v Keepa [2019] NZHC 3042.

5      R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010.

6      R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007.

for several days. In each of those cases, the sentencing Judge adopted a starting point of 18 months imprisonment.

[11]   The aggravating feature of your offending is that it involved the provision of a refuge for Mr Dodds for a period of five days when you knew he had been involved in a murder. You were also prepared to become involved in stealing vehicles to enable you to travel to the area where you arranged for Mr Dodds to be accommodated. Your counsel submits that I need to take into account the fact that you harboured Mr Dodds for a lesser time than was the case in the authorities where a starting point of 18 months imprisonment was selected. I give that submission little weight because it was only the intervention of the police that brought your offending to an end. I am satisfied that a starting point of 18 months imprisonment is appropriate on the charge of being an accessory after the fact to murder.

[12]   In addition, however, it is necessary to impose an uplift to reflect the fact that you were in joint possession of the firearm found in your vehicle. You also initiated a police pursuit that created a significant risk not only to you and Mr Dodds but also to other road users and the police officers who were trying to stop your vehicle. I accept the Crown’s submission that these two charges warrant an uplift of six months. A starting point of two years imprisonment is therefore appropriate to reflect your overall culpability.

Aggravating features

[13]   You have a modest criminal history, but it is not relevant for present purposes. I therefore apply no uplift to reflect previous convictions. However, you were on bail for other offending at the time of this offending and this is a relevant circumstance I can take into account. You also told the police you knew there was a warrant for you arrest. I propose to add an uplift of two months to reflect this factor.

[14]   It is now necessary to determine the extent to which I should reduce your sentence to reflect mitigation factors personal to you.

Mitigating features

[15]   I am not prepared to apply a discount to reflect your guilty pleas to two of the charges given that they were entered at the commencement of your trial and conviction on those charges was inevitable.

[16]   However, you spent approximately 18 months between 26 July 2022 and 15 March 2024 on restrictive EM bail conditions. This was not entirely blemish free because issues arose with some aspects of your compliance. The pre-sentence report describes your compliance on EM bail as average. However, I am prepared to apply a discount of six months, or approximately one-third, to reflect this factor. This reduces the sentence to 20 months imprisonment.

Home detention

[17]   Given that your sentence is one of less than two years imprisonment, the issue I must now determine is whether the sentence should be converted to one of home detention.

[18]   You have accumulated numerous convictions for dishonesty offences but you have no previous convictions for offending involving violence. Ordinarily, however, the appropriate response to your offending would be a sentence of imprisonment. This was moderately serious offending of its type although not as serious as offending involving the concealment or destruction of evidence. It was, however, aggravated by the dangerous manner in which you attempted to evade apprehension on 9 June 2022.

[19]   I also noted at the trial that you endeavoured to portray grief for what had happened to Mr McIntosh when the police interviewed you on the day of your arrest. This was totally at odds with the manner in which you had helped Mr Dodds to evade detection over the previous five days when you plainly knew that he had killed the person with whom you had very recently been in a relationship. I did not consider the grief you endeavoured to portray to the police to be genuine.

[20]   You also need to know that the offending has had a devastating effect for Mr McIntosh’s family. You are not to be blamed for his death because responsibility for

that lies with Mr Dodds. Nevertheless, the five days during which you harboured Mr Dodds was one of the most traumatic aspects of the events that led to his death for Mr McIntosh’s family. During this period they knew that the persons responsible for causing his death was still at large. They describe in some detail in their victim impact statements the fear that they felt during this period. They were also unable to obtain closure in any form until such time as you and your co-defendants were finally arrested.

[21]   However, you have now been subject to considerable restrictions on your liberty for a lengthy period. As I have already observed, you were subject to EM bail for approximately 18 months prior to your trial. Before you were granted EM bail, you spent approximately one and a half months in custody. You then spent two and a half months in custody awaiting sentence following your trial. This means you have spent four months in custody and this is equivalent to a sentence of eight months imprisonment. I therefore consider you have already suffered a significant degree of punishment for your wrongdoing.

[22]   The material your counsel has placed before me makes it clear that you have strong family support. They are here in Court today to support you. This is going to be essential if you are to be able to remain offence free in the future. And you are now at a crossroads, Ms Baker. You either cease your offending and become a worthwhile member of the community, or you continue to offend and continue to return to prison. That is the stark choice you now face.

[23]   The Crown is neutral on the issue of whether you should receive a sentence of home detention. After some reflection, I have concluded such a sentence is the least restrictive outcome appropriate in the circumstances and it is the sentence best suited to your rehabilitation. I do not see the interests of either yourself or the community being promoted by a sentence that requires you to spend further time in prison.

[24]   However, in imposing a sentence of home detention I need to take into account the time you have spent in custody because this would not be taken into account in any other way.

Sentence

[25]If you would now stand.

[26]   On the charges of being an accessory after the fact to murder and being in unlawful possession of a firearm you are sentenced to six months home detention on the conditions set out in the pre-sentence report. On the remaining charges you are convicted and discharged. You are to serve both sentences of home detention concurrently.

[27]   You are also disqualified from driving for two consecutive periods of six months each. The first of these is to commence on the date on which you are released from prison.

[28]Stand down.

Lang J