R v D and P

[2024] NZHC 2118

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANTS UNTIL FURTHER ORDER OF THE COURT. FACT OF FRATERNAL RELATIONSHIP MAY BE PUBLISHED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-244-18

[2024] NZHC 2118

THE KING

v

D AND P

Hearing:	31 July 2024
Appearances:	B D Tantrum and M C M Nash for Crown M Taylor-Cyphers and O R Hintze for D J W Clearwater and T J Conder for P
Sentence:	31 July 2024

SENTENCING REMARKS OF JOHNSTONE J

Solicitors: MC, Auckland

R v D AND P [2024] NZHC 2118 [31 July 2024]

[1]    D and P, I will now sentence you for the murder of Joshuah Tasi. It will take me some time to let you and the other people here in court know the reasons for the sentences I have decided to impose. At the end of this hearing, when I am about to impose those sentences, I will ask you to stand.

[2]    As brothers, you share the same family names. This morning, D and P, I am going to speak to you using your given names. And, members of Mr Tasi’s family and friends, I will refer to him as Joshuah.

[3]    I do not intend to be disrespectful. And I do not intend to treat any one of you like children. But Joshuah was, and you are, young. I do want to recognise the human impact of today’s hearing, on all concerned. And, as well as making it a little easier to be clear who I am talking about, using given names may help to do that.

[4]I will start by describing what you did, and its devastating effect.

Offending

[5]    Around 7 pm on 3 March last year [2023], D, you drove your BMW sedan along Hayman Place, towards its intersection with Beach Haven Road on Auckland's North Shore. You were 17 years old. You stopped the car a few metres short of the intersection to speak with your girlfriend's mother, who was on the footpath to the left. P, you were sitting in the front passenger seat. You were 14. An even younger cousin was sitting in the back.

[6]    Soon after, Joshuah drove his father’s minivan up behind you. He had borrowed it to go for a swim. There is no suggestion in the evidence that you knew Joshuah, or had any existing reason to be upset with him. Joshuah was a young man, driving in suburban Auckland on a Friday evening in late summer, with his windows down and his music on.

[7]    Finding his way out of Hayman Place blocked by your BMW, Joshuah sounded his horn. You did not respond. He sounded his horn again, and again your BMW did not move. Joshuah drove out and around it, turning left onto Beach Haven Road. It  is likely he made a comment out his passenger window as he drove around you.

[8]    Immediately, D, you drove after the minivan. And around 100 metres along Beach Haven Road, a road with one marked lane in each direction, you overtook it. And, as you moved back into the left lane, the rear left side of your BMW collided with the front right side of the minivan. The vehicles stopped, the minivan behind the BMW.

[9]    Within seconds, D and P, you both left the BMW, each having armed yourself with a knife. You positioned yourselves on each side of the minivan. Joshuah had not moved from the driver's seat. Simultaneously, you commenced to attack.

[10]   P, you put most of your upper body through the passenger window of the minivan, attacking Joshuah from that side. He attempted to use his legs to defend himself from you. You stabbed him twice in the right leg.

[11]   D, you took this opportunity to attack Joshuah from the driver’s side. You stabbed the right side of his body: his face, his shoulder, his chest, and his right torso, cutting partially through a rib.

[12]   This joint attack lasted only a few moments. As you both made your way back to the BMW, P, you raised your arms in celebration. One of you was heard yelling words to the effect of: “that’s what you get when you come to Beach Haven!”

[13]   D, you drove off quickly, taking the corner into Tramway Road at speed. But you took care to slow down as you drove past police officers who were there in their car undertaking routine police work. Both of you were assisted by at least one adult to swap cars, abandoning yours in Glenfield before travelling to Northland, where you were arrested in the early hours of the following morning.

[14]   Your attack had taken place in clear daylight. It had been witnessed by several members of the public. While you made your getaway, they bravely tried to help Joshuah. The police also arrived in short order.

[15]   But the stab wound you inflicted into Joshuah’s torso, D, went not just through part of a rib, it went into and out the other side of his right lung, and it cut a major

blood vessel. So while one of you was shouting mindlessly about how staunch you are, Joshuah was dying. He died from blood loss, caused by that stab wound, within minutes of your attack. He was, and he will remain, 28 years old.

Effect on victim’s family and friends

[16]   This morning we have heard, read out to us, the heartfelt statements that have been written by Joshuah’s mother and father, by his three sisters and one of his two brothers, and by two of his close friends, about how his loss has impacted so heavily upon them. And this weekend just gone, I was offered and then did listen carefully to a recording of him playing the guitar and singing, beautifully, with all the young joy his heart could express.

[17]   The statements confirm very clearly the loving environment of which Joshuah was a part, which no doubt contributed to his much admired, outgoing and friendly personality. And they confirm that his absence is felt very deeply, and continues to be felt every day.

The presumption of life imprisonment for murder, and young offenders

[18]   The usual sentence for murder is  one  of  life  imprisonment.  The Sentencing Act 2002 contains a presumption in its favour.1 This is because “society has always placed special value on human life and condemned those who take life deliberately or with reckless disregard”.2

[19]   But because of the way young people’s brains are still developing up until around the age of 25, sentencing judges need to consider the ways in which young offenders are different to people who choose to offend as adults.3 Young people have less self-control and are more impulsive. Unless their brains are impaired in some way, they grow out of it.4

1      Section 102(1).

2      Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [171].

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

4      Dickey v R, above n 2, at [86].

[20]   And around a year and a half ago, the Court of Appeal accepted that there are certain things about life sentences for murder which, in combination, may lead to them being manifestly unjust for some young offenders, because of their effect over and above that of a long, but determinate, sentence with a substantial minimum period, designed to mark the fact of a life being taken without justification or excuse.5

[21]   Following that decision of the Court of Appeal, I need to assess whether imposing a sentence of life imprisonment upon either of you would be manifestly unjust. When I make this assessment, I must decide the matter on its own merits, having regard to “the full register of sentencing principles, purposes and factors”, as one of overall impression. The assessment begins with assessing the gravity of the offending and the culpability of each offender: in other words, how bad was your crime and how badly did you behave? Then I need to look at your personal circumstances as individuals. Manifest injustice is “most likely to be found where the offender can point to both mitigating circumstances of the offending and a combination of substantial personal mitigating factors”.6 Generally speaking, youth alone will be insufficient.7

The Crown’s position

[22]   As you have heard, the Crown says that imposing a sentence of life imprisonment upon each of you would not be manifestly unjust. Your lawyers say that it would.

[23]   In respect of the offending itself, the Crown points to the terrible harm that was caused. It says that you decided to act together and that you knew Joshuah was vulnerable to the joint knife attack you undertook. The Crown adds that there was premeditation involved.

[24]   On the question of your culpability, the Crown says that you both acted very badly. It notes that you, D, made the decision to chase and to stop Joshuah with your car, and — although it accepts you may not actually have intended to kill him — it

5      At [179]–[193].

6      At [195] (footnotes omitted).

7 At [177].

reminds me that you inflicted multiple stab wounds to his head and chest, and at the very least intended to cause a serious injury which might well cause death. The Crown says that your actions, P, because of how fully you took part, were not much better than those of your older brother.

[25]   And against that, the Crown says about both of you, personally, that your ages and your backgrounds are not things that should overcome the presumption of life imprisonment. It says that in the recent cases where this assessment of the justice of a life sentence for a young offender has been undertaken, there has been more compelling evidence of a connection between the offending and the personal circumstances of the offender.

Assessment whether life imprisonment manifestly unjust

[26]   In making my assessment of the gravity of your offending, and of your culpability, I accept much of what the Crown has said. However, there are areas where I disagree.

[27]   First, I doubt there was much, if any, planning or premeditation. Once you, D, decided to get back at Joshuah, just because he let you know you were behaving rudely by sitting there blocking traffic, there was just not enough time for you and P to plan your attack.

[28]   You are likely to have said something to each other about what you were going to do. Whatever may have been said, it won’t have been much. You agreed between the two of you to undertake a serious assault upon the man in the minivan, and to help each other to do so. You knew you both had knives and would use them, and whether you meant to or not, you knew those knives might even kill the man. But as brothers, this common understanding and knowledge will have been formed between you in just a few seconds.

[29]   And second, beyond demonstrating this minimal level of thinking, I consider your actions were very much the “mindless, poorly thought out and objectively irrational” kinds of actions that can flow from the developing brains of young people: brains which according to scientific studies are, as I have said, susceptible to

risk-taking, impulsivity and poor judgement.8 Your attack on Joshuah was over nothing more serious than you, D, having been called out for blocking the road while you chatted to your girlfriend’s mother. It was in broad daylight, with people watching. And your offensive gesturing and shouted comments afterwards are consistent with the immaturity and lack of judgement of a teenager.

[30]   I borrowed those words — “mindless, poorly thought out and objectively irrational” — from another Judge who was deciding one of those recent cases that the Crown says involved a more compelling connection between the offending and the offender’s personal circumstances. In that case, the offender was 17 years old. Once the Judge referred to the apparent connection, between the offending and the offender’s age, he went on to mention how that 17 year old offender’s upbringing was marred by violence, deprivation and neglect, and how those things made the teenager’s poor thought-control even worse.9 The Judge referred to that teenager’s significant potential for rehabilitation, and it was the combination of all of this, when considered against the potential harm of a life sentence, rather than a long determinate sentence, which led to the finding that a life sentence would be manifestly unjust in that case.

[31]   Turning to your backgrounds, I have received reports on each of you from the Department of Corrections and from professional report writers. These reports describe how each of you were born into what you call the “gang lifestyle”. Violence was common. As was exposure to drugs. You both report considerable drug use from an early age. When you were very young, your parents were imprisoned. You and younger siblings were placed in state care, and were moved a number of times before being housed with your aunt.

[32]   Your mother confirms your exposure to violence, as does the fact you have each been in trouble at school for fighting. She says that she and your father have sought to improve your situation after your time in care, and of course that is to be applauded. However, during this case, I have seen accounts of your father threatening violence against police who had you, P, in custody, and even against your Corrections

8      R v Huntley [2023] NZHC 3547 at [37] [Huntley sentence indication]; and R v Huntley [2024] NZHC 182 at [25] [Huntley sentencing notes].

9      At [38] and [26], respectively.

report writer, D, if they were to act in a way that he thought might harm you. To my mind, this only confirms the poor role-modelling you have received.

[33]   The Crown questions just how harmful your upbringing has been. I accept the 17 year old I have been discussing had had violence inflicted against him. So, too, did a 20 year old who did not receive a life sentence after he undertook a fatal knife attack in the course of a late night street fight.10 Those factors might be said to have made those offenders’ backgrounds more compelling than yours. But I believe I have received sufficient information and therefore insight into your shared personal backgrounds to find that they have conditioned you, wrongly, to see violence as a legitimate response to problems in your lives. I can only hope that over the years in custody that are ahead of you, you will come to see behaviour involving the use of violence, for almost any reason but especially over something as trivial as being asked to move out of the way when you are blocking the road, as behaviour that deserves less respect, rather than more. D and P, I will say this as clearly as I can: you need to grow up and to learn that using violence makes you a smaller man.

[34]   And so here is another area where I disagree with the Crown’s submission. I see the cases of the 17 year old and the 20 year old that I have been referring to as comparable to your cases, at least in this sense: there is a clear connection between the offending and your personal circumstances in terms of ages and your upbringing. My overall assessment is such that I find sentences of life imprisonment would be manifestly unjust.

Setting a determinate sentence

[35]   Because of that finding, I have had to decide upon the appropriate determinate sentence, stating a particular length of time, for each of you. The limited number of cases in which sentencing courts have imposed determinate sentences for murder do not provide a great deal of guidance.11

10     R v TH [2023] NZHC 630 at [27].

11     Dickey v R, above n 2, at [205].

[36]   The usual method for setting a determinate sentence involves two stages: deciding upon a starting point, which takes account of all of the aggravating and mitigating features of the offending, and then making adjustments, for all of the aggravating and mitigating factors personal to the offender together with any guilty plea discount.12 The Judge then stands back to check whether the outcome meets the applicable sentencing purposes, principles and other factors.13

[37]   The advantage of separating, and stating the outcome of, consideration of the features of the offending, as distinct from factors personal to the offender, is that this “permits comparison among starting points for similar offending”.14

[38]   In the Court of Appeal case that I have mentioned, once that Court found that it would be manifestly unjust to sentence three young offenders to life imprisonment, it adopted the usual two-stage method of assessing starting points for each of them, and then making deductions, stated generally as percentages, for the personal factors they each presented. Standing back, though, the Court found in each case that the outcome of this exercise did not arrive at a sentence severe enough to be proportionate to the seriousness of the offending. So the Court added back periods of six or seven years, adding enough length to get to the point where it considered the sentence appropriate.

[39]   Cases decided since then have adopted a similar approach.15 Starting points, consistently of either 20 or 21 years’ imprisonment, have been adopted for murders committed by young people, but in each case, after deductions for personal factors and guilty pleas, the end point has been found not to be proportionate to the seriousness of the offending, which has in turn led the courts to add back periods of time ranging widely, from five months,16 to seven years and two months.17

12     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

13 At [49].

14 At [6].

15     R v TH, above n 10; Huntley sentence indication and Huntley sentencing notes, above n 8;

M (CA434/2022) v R [2023] NZCA 319; and R v Faiers [2023] NZHC 3368.

16     M (CA434/2022) v R, above n 15, at [112].

17     Huntley sentencing notes, above n 8, at [39] and [47].

[40]   I consider that if this becomes the standard approach, it risks compromising the transparency, and thus consistency in sentencing, that the two-stage method of sentencing was designed to achieve. The implication, in cases where personal factors are mitigating but their consideration gives rise to an inadequate end point, is either that the assessed starting point was too low, or the deductions from that starting point were too high. Assuming, as is likely, the deductions were appropriate, then instead of adding back periods of time to make the sentencing method fit the broader purposes and principles of sentencing, it might instead have been acknowledged that, upon reflection, the starting point assessed to reflect the offending’s gravity should have been higher.

[41]   I intend to choose starting points which fully reflect the gravity of, and your individual culpabilities for, your offending (involving as it did the taking of a vulnerable stranger’s life in a senseless, multi-handed attack), by reference to the starting points implied by the end sentences in the cases I have mentioned.

Personal mitigating features

[42]   Before I do that, I will deal with your personal circumstances, which I find are significantly mitigating.

Backgrounds and upbringings

[43]   Dealing first with your backgrounds and upbringings, the Supreme Court has recognised certain risk factors which, if present during childhood, make offending later in life more likely18. Yours feature most of these risk factors. As I have said, there was significant exposure to gang violence and drug use, and poor role-modelling from those around you. You have reported that the violence was not limited to fighting, but also involved stabbings and shootings. At one point, both your parents went to prison, and you were moved around in state care until you went to live with an aunt.

18     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [116].

[44]   That said, your background does not indicate the same levels of profound trauma, sitting alongside these aspects of social and cultural deprivation, which had been suffered by one of those young people who were re-sentenced for murder by the Court of Appeal, and which in combination warranted a 25 per cent discount.19 In other cases I have referred to this morning, the young persons received deductions of 15 per cent for backgrounds that included normalisation of violence and drug use, and for some, neglect and the suffering of abuse.20 While you appear not to have suffered physical abuse yourselves, I consider that the significant number of risk factors present during your upbringings have contributed, causatively, to your actions in deciding to spontaneously inflict significant  violence  on  Joshuah  Tasi. I intend to allow a 20 per cent deduction to each of you in light of your backgrounds.

Youth and prospects of rehabilitation — D

[45]   D, you were 17 years old at the time of this offending. Because of your developing teenage brain, you had poor impulse control and risk assessment. Your age even now means you should, following your conviction, have a higher potential for rehabilitation than an adult. I say “should” because despite your youth, I am troubled by aspects of your report writer’s report which indicate that violence is ingrained in you, and that you have turned to it regularly. And to date, you have indicated only regret for the effect of your actions upon your brother and yourself, not remorse.

[46]   But given you are only 19 years old, I do not want to suggest that your chance at rehabilitation is behind you. So I will give you a deduction of 25 per cent for your youth and for the associated rehabilitative prospects that should exist alongside your age. This 25 per cent deduction sits between the greater deductions given for youth

19     Dickey v R, above n 2, at [242] (Ms Epiha).

20     R v TH, above n 10; Huntley sentence indication and Huntley sentencing notes, above n 8;

R v Faiers, above n 15.

murderers who were younger than you or demonstrated a degree of remorse, and the smaller deductions for those who were older than you.21

Youth and prospects of rehabilitation — P

[47]   P, you were only 14 years old at the time. At 14, you were materially younger than most of the other youth murderers sentenced to determinate sentences, except one who was also 14,22 and I have heard submissions as to another aged 13.23 As in that case, the case of the 14 year old, your age significantly reduces your culpability, and your prospects of rehabilitation are good. Over recent months, you have demonstrated better behaviour while in the youth justice facility at which you have been held, and you participate reasonably well in school and other programmes offered in your unit. You also have expressed some awareness of the harm you caused to Joshuah and his family, and have indicated a degree of remorse.

[48]   For the other 14 year old I mentioned, a deduction of 40 per cent was given for youth, rehabilitation prospects and remorse.24 However, in that case the young person demonstrated significant remorse, writing a sincere letter of apology to the family.25 I consider a deduction of 35 per cent to be appropriate in your case.

Starting points

[49]   I now return to the issue of starting points for each of you. The thoughtful submissions offered by counsel in this case, understandably, have been directed along the lines of the somewhat opaque reasoning process mentioned above. In those other cases that I have referred to today, the starting points implied by the discounts and end points ranged widely: from as high as 43 years and four months, down to 21 years and

21 M (CA434/2022) v R, above n 15, where 40 per cent was given for the youth, rehabilitative prospects and remorse of a 14 year old. Dickey v R, above n 2, where 30 per cent was given for the youth and rehabilitative prospects of 16 year old Ms Dickey. Huntley sentence indication and Huntley sentencing notes, above n 8, where 25 per cent was given for the youth and promising rehabilitative prospects of a 17 year old. Dickey v R, above n 2, where 25 per cent was given for 18 year old Ms Epiha.   Dickey v R, above n 2, where 20 per cent was given for 19 year old    Mr Brown who had a mental age less than his chronological age. R v TH, above n 10, where 20 per cent was given for a 20 year old. R v Faiers, above n 15, where 10 per cent was given for a 24 year old.

22 M (CA434/2022) v R, above n 15.

23 R v Nelson [2012] NZHC 3570.

24 M (CA434/2022) v R, above n 15, at [110].

25 At [104].

eight months.26 I will assess starting points as best I can based on the gravity of your offending and your respective culpabilities, in line with this broad range of implied starting points.

[50]   D, as the Crown says, you inflicted multiple stab wounds to Joshuah Tasi’s head and chest. You were the driver who made the choice to pursue Joshuah Tasi, and then to stop both cars so he could be attacked. I agree with the Crown’s submission that it was a frenzied attack on an individual who was made vulnerable by his position in the driver’s seat of his minivan and because the attack came from both sides. Your offending bears some similarity to several other cases of stabbings where the young person inflicted the fatal stab wound. The implicit starting points in those cases, which each  involved  related  offending  against  other  victims,   were   43   years   and four months,27 40 years,28 and 27 years and eight months.29

[51]   In your case, I arrive at a starting point of 38 years’ imprisonment, from which I will deduct 45 per cent to reflect your personal circumstances.

[52]   P, on the issue of your culpability, you took a significant part in a coordinated attack on Joshuah Tasi. You were aware that D was carrying and intended to use a knife in a way that could well cause Joshuah Tasi’s death. You were also carrying, and used a knife yourself. Your actions assisted those of your brother, distracting Joshuah and making him more vulnerable to being attacked from the driver’s side of the minivan, because of the way that he used his legs to try to defend himself. And the way you raised your arms in the air following your attack from the passenger’s side of the minivan shows that you were able to see something of what D had done on the driver’s side, and your attitude was one of celebration. While you did not inflict the fatal stab wound, you played a critical part in your brother being able to do so.

[53]   In your case I arrive at a starting point of 32 years, from which I will deduct just a fraction less than 55 per cent for your personal circumstances.

26     See Appendix 1 for the calculation of implied starting points in Dickey v R, above n 2, and all youth murder sentencings since Dickey where a determinate sentence was imposed.

27     R v Dickey, above n 2, (Ms Epiha).

28     Huntley sentencing notes, above n 8.

29     R v TH, above n 10.

[54]   Standing back, I consider that in each case the outcome of making the stated deductions from the assessed starting points appropriately reflects the purposes and principles of sentencing in the round.

Minimum period of imprisonment

[55]   As I will impose determinate prison sentences of more than two years, I am entitled to order each of you to serve a minimum period of imprisonment, before you are eligible for parole, to the extent such a minimum period is necessary for one or more of the purposes of holding you accountable for the harm done to Joshuah and his community, denouncing your conduct, deterring you and others from committing similar offences, or protecting the community from you.30

[56]   For each of you, I consider the usual non-parole period of one-third of the determinate sentences I have come to,31 would be insufficient to hold you accountable for the harm you have done, and to denounce your conduct. Your offending involved a mindless, wholly disproportionate response to a traffic hold up featuring an innocent member of the community simply going about his life.

[57]   In your case, P, I will impose a minimum period of six years which I find to be necessary for those purposes, representing just under 42 per cent of your overall sentence.

[58]   D, in your interviews with your professional report writer, you spoke of your consistent resort to violence, from primary school onwards. In more recent years, your fighting escalated to involve weapons. Your offending against Joshuah involved further escalation, with the most damaging of outcomes. I consider that a 42 per cent minimum period of imprisonment, imposed for the purposes of accountability and denunciation would be insufficient in your case to address the additional need for protection of the  community.   In your case, I  will  impose a minimum period of   10 years, that period representing 48 per cent of your overall sentence, and being necessary to meet the purposes I have mentioned, without exceeding the minimum

30     Sentencing Act 2002, s 86.

31     Parole Act 2002, s 84.

period you would have been required to serve had you been sentenced to life imprisonment.

Imposition of sentences

[59]D and P, please stand up.

[60]   D, for your crime of murdering Joshuah Tasi, you are sentenced to 20 years and 10 months’ imprisonment, and must serve a minimum period of imprisonment of 10 years.

[61]   P, for your crime of murdering Joshuah Tasi, you are sentenced to 14 years and five months’ imprisonment, and must serve a minimum period of imprisonment of six years.

[62]Stand down.

Johnstone J

Appendix 1

Table demonstrating the implied starting points in Dickey and all youth murder sentencings since Dickey where a determinate sentence was imposed.32

32     Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.