R v Daley
[2020] NZHC 1560
•3 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-035-1361
[2020] NZHC 1560
THE QUEEN v
REX JI TE RANGI DALEY
Hearing: 3 July 2020 Counsel:
G J Burston for Crown O S Winter for Mr Daley
Sentencing:
3 July 2020
SENTENCING NOTES OF ELLIS J
[1] Mr Daley, because you were not convicted when you pleaded guilty I need to convict you today on:
(a)one charge of aggravated burglary;
(b)one charge of causing grievous bodily harm with intent to cause grievous bodily harm; and
(c)one charge of discharging a firearm with reckless disregard for the safety of others.
R v DALEY [2020] NZHC 1560 [3 July 2020]
[2] Because the aggravated burglary and the charge of causing grievous bodily harm with intent to cause grievous bodily harm are both what we call strike offences, I have to give you a first strike warning. That warning is: the consequences of any other serious violence conviction you will also be given a written notice that sets out those consequences which also lists the serious violent offences concerns.
[3] So the warning is: if you are convicted of any 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. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust, and in that event the Judge must sentence you to a minimum term of imprisonment.
[4] You will appreciate there are quite a lot of things I need to say and talk about today before I actually get to your sentence.
[5] As you probably know, the maximum penalty for both the aggravated burglary and the grievous bodily harm charges is 14 years’ imprisonment. The maximum penalty for the firearm charge is seven years’ imprisonment.
[6] As Mr Burston said this morning, in December last year I indicated that— subject to any further information received by the Court and on the basis that you then entered a guilty plea—the likely end sentence on those charges would be 10 years’ imprisonment with a minimum period of imprisonment or MPI of five years.
[7] Since then the Court has received further information relevant to sentencing and I will come to that shortly. But it is necessary first to briefly set out the facts of your offending.
Background
[8]The charges relate to events on 2 December 2018.
[9] Your then partner, Tiana Walker-Dahlberg, and her former partner, Mr Francis were in the midst of a custody dispute and tensions between them were high. One of the two victims (Mr Rhodes) was a relative of Mr Francis. The other victim, Ms Nepia, was Mr Rhodes’ partner.
[10] At around 9 pm on that day (and following encounters earlier that day) you, Ms Walker-Dahlberg and her cousin Mr Takamore travelled to the house of Mr Rhodes’ mother, where Mr Rhodes and Ms Nepia were. You had earlier armed yourself with a sawn-off shotgun and some ammunition. You were wearing your Nomad gang patch. Mr Takamore was driving. All three of you covered your faces with bandanas.
[11] The victims and other family members were standing outside. They were on the lookout for you. Mr Rhodes saw your car park some distance away from the address and turn its lights off. You got out of the car carrying the loaded shotgun and walked onto their property, toward the victims and their family. That is the basis for the aggravated burglary charge.
[12] Thinking you were carrying only a bat, Mr Rhodes challenged you to a fight. Once you were a few metres away, you raised the gun and closed the barrel. Recognising the sound, Mr Rhodes retreated into his mother’s yard and tried to hide behind the cars parked in the driveway.
[13]You followed Mr Rhodes into the yard and tried to point the shotgun at him.
[14] Meanwhile Mr Takamore drove the car closer and parked across the road. Ms Walker-Dahlberg got out of the car and yelled abuse at the victims and their family. Ms Nepia, with two other family members, ran towards Ms Walker-Dahlberg, who got back into the car and locked the door. Ms Nepia and her family members pounded on the window of the car.
[15] You then ran back to the car with the loaded shotgun and used the butt to hit one of them. Ms Nepia tried to protect the others. You turned the shotgun on her and fired into her left leg. Although you have told people later said that the gun went off
accidentally, I do not accept that as it does not accord with the charge to which you pleaded guilty. And as the reports I have received (which I will talk about later) make clear, you were in a state of high agitation and not thinking rationally or clearly. It seems to me likely that, in that state, you pulled the trigger on purpose.
[16] Ms Nepia fell to the ground, bleeding heavily. That is the causing grievous bodily harm charge.
[17] You then got back into the car and the car left the scene. As you were leaving you fired another round at the family from the rear passenger window. The shot hit and shattered a bedroom window of the house. A member of Mr Rhodes’ family was inside the bedroom at the time. That is the basis for the firearm charge.
[18] Ms Nepia suffered life-threatening injuries. She was hospitalised for several months. Her leg was amputated above the knee. She still requires medical treatment. She has to use a wheelchair and has large scars from her surgeries. I have read her victim impact statement and I hear what Mr Winter said this morning about him reading it to you. You understand, I think, that her life has been permanently and horrifically affected by what you did that day. She has lost her children. She has lost her independence. Your unnecessary, thoughtless and violent actions took those things from her.
Sentence
Starting point
[19] In my sentence indication I took the lead charge as the charge of causing grievous bodily harm with intent to cause grievous bodily harm. Counsel were agreed that what happened here falls at the most serious end of such offending. In particular, there was an element of premeditation or planning, the involvement of an obviously lethal weapon, there was the shooting of an unarmed woman at point-blank range, and the potentially fatal and life-altering, permanent injuries suffered by Ms Nepia. There was as well a limited element of vigilante action involved—of “acting out of revenge” for something that had happened, or at least was thought to have happened, to Ms Walker-Dahlberg earlier that day.
[20] Taking all those things into account, the lawyers and I were more or less agreed last year that a starting point of 11 years was appropriate, uplifted by 18 months for the other two offences and by six months for your past convictions, some of which also involved some nasty acts of violence. So that resulted in a starting point of 13 years’ imprisonment, which is what your lawyer Mr Winter was advocating on your behalf at the end of last year.
[21] In my sentence indication I said that if you chose to plead guilty within a week of the sentence indication you would get more or less a full discount of 25 per cent for that plea. You did that, which meant that the indicated starting point, as Mr Burston said this morning, is reduced to 10 years’ imprisonment.
[22] Since I gave my sentence indication I have received a provision of advice to courts (or PAC) report and a report about you prepared by a psychiatrist under the Criminal Procedure (Mentally Impaired Persons) Act.
[23] The PAC report records that you acknowledge the seriousness off these current convictions and show understanding of the things that have contributed to your offending. The writer says you are focused on creating a positive pathway for the future and—as evidence of this—you say you have left the Nomads, over a year ago, and I hear again what Mr Winter said this morning about you having no desire to retrieve your patch from police. You said that you want to accept any opportunity offered him while in jail that will help you achieve your goals. As I understand it from the report, and as I asked you before, you are also fluent in Te Reo, thanks, I think, to your grandmother. That is something you can be very proud of and should carry with you always.
[24] The psychiatrist’s report makes very distressing reading. Dr Heads says that although your relationship with your Mum was and remains close, you had a very disturbed and violent childhood, characterised by abuse from your stepfather, from wider family members and then while you were in state care. When you were 12 you were very badly affected by the horrendous death of the little girl Lillybing, who was a member of your extended family. Dr Heads says that, unsurprisingly, these early life experiences
have had a hugely negative impact on your emotional and psychological development and have left you vulnerable to mental health problems as an adult.
[25] You became involved in aggressive and violent behaviour, and with gangs, at a young age and have spent most of your adult life in prison, including for a 13-year period between 2005 and mid-2018. Dr Heads says that you suffer from a range of serious and inter-related mental health problems, including PTSD as a result of your childhood experiences and also schizophrenia, the symptoms of which first appeared while you were in jail, in 2016. You have had considerable contact with mental health services since that time. Your illness has been characterised by disturbed behaviour, persecutory and referential beliefs and abnormal perceptual experiences. But you have responded positively to treatment with antipsychotic medication. You have also had long-term problems with depression, suicidal thoughts, anxiety, stress, anger and substance abuse, which make your illness worse. But when you are in jail and you are taking your medication, your symptoms improve.
[26] When you were released from prison in mid-2018 and while you were still on parole, you were followed up by community mental health services and continued to take your antipsychotic medication for a while which helped you remain stable. But then you disengaged and stopped taking your medication. You started using drugs again and your mental health rapidly deteriorated. You say you did try and get help at around this time but were not successful. Mr Burston has spoken today, though, about an attempt to intervene in mid-November 2018 because of the high risk you were seen as posing.
[27] Dr Heads suggests –and I have no doubt—that what you did on 2 December 2018 was directly linked to your heavy methamphetamine use combined with your mental illness. In your own words, you went into “kill mode” because you thought Mr Rhodes had hurt Ms Walker-Dahlberg, who I think you really loved and cared for.
[28] Your mental health has improved since you have been back in jail following those events and started taking your medication again. Dr Heads says that you are now able to think rationally and clearly, and because of that you have expressed real remorse for what you did to Ms Nepia and to Mr Rhodes. And, of course, I heard what you said to Ms Nepia this morning, and I do accept what Mr Winter says about that,
which is that it is a big deal as far as you are concerned, and I have to say I disagree with Mr Burston, for the Crown, when he said that I should not take that into account.
[29] It is impossible to read Dr Heads’ report and not to feel immensely sad. No- one deserves to have a childhood like yours, Mr Daley, and only the very strongest are able to get past such an upbringing. The difficulty is that Dr Heads’ conclusion is that, in light of the nature and severity of the current offences, your past history of violent offending and your mental health problems, you still present a very serious risk of doing further harm to others. Although Dr Heads does not think you presently need treatment in hospital he does think you need a lot of help. He says you need ongoing follow-up by mental health services for the foreseeable future and that you should be referred for ACC counselling about your childhood experiences. He says you need intensive work to address your substance abuse issues and also to help you address your anger issues and the causes of your violent offending.
[30] The really difficult question is how all of this plays out in terms of your sentence. For myself, I have little difficulty in accepting that your mental health issues and your remarkably difficult younger life have had a very significant part to play in terms of where you find yourself today. So too has substance abuse, although the Courts do not usually regard that as a matter of excuse, despite its obvious link with difficulties of the kind you have experienced. But I take you at your word when you say you are committed to turning your life around. You are still relatively young and it is not, I hope, too late for you to do that. What is clear, though, is that you will need a lot of help over a long period of time, including of the kind Dr Heads suggests. And you are going to need to dig very deep and stay strong and committed, even when things get tough as I am sure they will.
[31] In the end, I am prepared to allow a further discount of 15 per cent for remorse and for the personal factors I have just been discussing. I am also not going to impose a minimum period of imprisonment today because I hope that that will motivate you to start addressing all the things you need to, as soon as you possibly can. I think your commitment to rehabilitation and finding your way to a better life is the most important thing in sentencing you today. In saying that, like Mr Winter, I do not diminish for one moment the terrible, terrible thing that has been done to Ms Nepia.
[32] So that gives me your end sentence today. On the charge of causing grievous bodily harm with intent to cause grievous bodily harm I sentence you to eight and a half years’ imprisonment. On the charge of aggravated burglary I sentence you to five years’ imprisonment. On the discharging a firearm charge I sentence you to three years’ imprisonment. All sentences will be concurrent, which means that eight and a half years’ imprisonment is the end sentence. There will be no MPI.
[33]Please stand down.
Rebecca Ellis J
Solicitors:
Crown Solicitor, Wellington
Winter Woods, Palmerston North