R v Fore
[2020] NZHC 2290
•4 September 2020
ORDER UNDER S 205 CRIMINAL PROCEDURE ACT 2011 SUPPRESSING ANY REPORTING ON THIS SENTENCING UNTIL CHARGES
AGAINST REMAINING DEFENDANTS DETERMINED.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2018-083-1456
[2020] NZHC 2290
THE QUEEN v
DWAYNE ANSON TEWHENUA FORE KEMP RANGITAHAE RIPPON DANIEL SHANE WHAREAORERE
Hearing: 3 September 2020 Counsel:
M M Wilkinson Smith and R N Benic for the Crown A J Holland for the Defendant Fore
S Lance for Defendant Rippon
P M Keegan and J H C Waugh for the Defendant WhareaorereDate:
4 September 2020
SENTENCING OF COOKE J
[1] Kemp Rippon, Dwayne Fore and Daniel Whareaorere you appear today for sentencing on the charge of manslaughter following the guilty pleas you have entered after receiving a sentencing indication.1 Mr Rippon you have pleaded guilty to the additional charge of wounding with intent to cause grievous bodily harm.2 And Mr Fore you have also pleaded guilty to driving offences committed while on bail.
1 Crimes Act 1961, s 167, maximum penalty life imprisonment.
2 Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.
R v FORE & ORS [2020] NZHC 2290 [4 September 2020]
[2] The summary of the facts for the main offending is the same for each of you. The role that you each played in the offending is also largely the same, although there are some differences. I propose to consider the general starting point for the period of imprisonment for the offending. I will then deal with the sentence for each of you separately including the starting point for each of you given your involvement and the issues that affect your individual sentence.
[3] I note that the background is unusual given your guilty pleas following a trial that was abandoned earlier this year as a consequence of the implications of COVID-
19. The abandonment occurred shortly after the conclusion of the Crown’s case. I heard the evidence at the trial to that point. I have made it clear, however, that under s 24 of the Sentencing Act 2002 the sentence must proceed on an agreed summary of facts rather than my view of the evidence we heard during the trial.3 I do not supplement the agreement by any of my own views about the facts in a material way, although as usual I am able to draw inferences from the summary, and further points of agreement have emerged from counsels’ earlier submissions.
The offending
[4] On Sunday 22 April 2018 the three of you were among a group of Black Power members who attended the home of James and Brent Butler to engage in what is colloquially referred to as a taxing. James Butler had been known to be involved in selling drugs in the area, and your intention was to extract by force drugs, money or other items of value.
[5] Your group was made up of 8–10 people. You arrived in two vehicles at approximately 6.15 that evening. James and Brent Butler and an associate of James Butler were there. Other persons had been there during the course of the day, but these three were the only people there when you arrived. The address was the Butler home.
3 I was initially asked by the Crown to consider giving a sentence indication based on my view of the evidence at trial if a summary of facts could not be agreed, but I indicated that an agreed summary of facts was required by minute of 15 May 2020.
[6] Mr James Butler was located with the associate in an area which was a closed over area of a deck at the back of the property that had been converted into a sunroom. That is where he operated from.
[7] Your group arrived in two vehicles which parked in the driveway. Access to the sunroom was by a set of steps from the driveway area at the back of the house up to the back door. Two of your group went up the steps to the door and asked for James Butler. They were wearing balaclavas. They were told he was not present. They went back down the steps and then a group of four to six of your group then went back up the steps and forced open the door. Mr Rippon and Mr Whareaorere you were both in that group. Mr Rippon you had nothing covering your face and you were holding some form of weapon in your hand. The group then demanded that Mr Butler hand over his drugs. One of the group told the others who were not doing much to deal to Mr Butler. He was then pushed around with demands made for his property, and he was also physically searched. A cut-down .22 calibre rifle was pointed at him.
[8] Mr Brent Butler was in the adjoining kitchen and heard the commotion. He came out into the sunroom and then returned to the kitchen and grabbed a wooden axe handle in order to protect his brother. He entered the sunroom and grabbed the firearm as it was held by one of the group. As he did so there was a “click click” sound as if the firearm had failed to fire.
[9] During the general scene of pushing and shoving James Butler’s associate was able to leave the sunroom and proceed down the steps. At the bottom of the steps he was confronted by another member of your group who told him to lie down on the ground. He responded that he would go back inside. As he began doing so the group inside the house ran back down the stairs towards him. Mr Whareaorere as you were running down the steps you told the associate, who knew you, not to say that you had been there.
[10] All members of the group then got back into the vehicles. Before you were able to leave Brent and James Butler then approached the driver and passenger of the front vehicle. Brent Butler was still holding a wooden axe handle and he reached through the open window on the driver’s side and grabbed hold of the driver by the shirt. James Butler had obtained a wooden handled mallet with a metal head from his
garage and he approached the passenger and started hitting or attempting to hit the left front passenger with the mallet through the opening in the window.
[11] Whilst Brent Butler was grabbing the driver by the shirt he was assaulted with a weapon. He obtained two significant injuries — a blow to his hand causing his left middle finger to break, and a blow to the back of his head instantly rendering him unconscious which caused lacerations to his scalp. This assault forms the basis of the wounding with intent to cause grievous bodily harm charge that you have pleaded guilty to Mr Rippon.
[12] Whilst James Butler was hitting or attempting to hit the passenger with the mallet he was shot at. Several gun shots were fired at him. He ran back for safety towards the steps holding his neck coughing up blood. He collapsed, falling between the base of the steps and one of his vehicles, and died as a result of being shot. Three used .22 calibre casings were later located on the driveway by police, as was a bolt from one of the firearms. The identity of the shooter is not known. The Crown do not say that it was one of the three of you.
[13] The members of your group then got back into the vehicles they arrived in and reversed out of the driveway. As you left three mag wheels belonging to the Butlers that had been placed in the vehicles during the course of the events were discarded onto the road.
[14] Some time after you left Brent Butler regained consciousness and discovered his brother deceased at the bottom of the steps. The injuries to Brent Butler included a sustained cut to his head, a broken finger with a lacerations and concussion. Surgery was required on his finger to repair the fracture.
[15] It is relevant that I sentence you today on the basis that you were parties to the manslaughter of James Butler. It is not suggested that any of you actually shot him. But you participated in a criminal endeavour that led to his death and you are guilty of manslaughter on that basis.
[16] It is important you understand that your offending not only resulted in the death of James Butler, but that it has had a devastating effect on the wider Butler whanau.
We have heard from Deanna Bishop for the Butler family. The whanau have come here today to see you being sentenced and to express their views. I hope you will remember what she said. It needs to stay with you. They are all part of the community to which you have belonged. And yet James Butler has been killed, and the family devastated. And that has happened simply because of your group’s desire for drugs and money.
Starting point
[17] I begin by first assessing the general starting point for the period of imprisonment on the charge of manslaughter.
[18] There is no guideline judgment for manslaughter given that the circumstances of that offending can vary so much. There is authority for the proposition that the use of the Taueki guideline judgment may be appropriate.4 However it has also been observed that there may be some awkwardness in applying the Taueki guidelines to manslaughter cases, and that comparisons with other cases may be a better guide.5 In the present case I do not think that the application of the Taueki framework is particularly helpful. This was an armed robbery that went wrong. The defendants are liable for manslaughter as parties under s 66, and the role played by the participants varied. To apply Taueki to each of you would not truly assist in identifying a starting point for your offending. I intend to proceed by looking at comparable cases, whilst noting the factors addressed in Taueki as relevant to assessing how comparable other cases to your case.
[19] Many cases have been referred to by counsel in their submissions as comparisons for the purpose of assessing the starting point. It seems to me that the decisions of the Court of Appeal in Griffin v R and Pakau v R provide the most relevant guidance.6
[20] Griffin v R was a gang-related armed robbery that went badly wrong with one of the defendants found guilty of murder and the others found guilty of manslaughter.
4 See R v Tai [2010] NZCA 598 at [11]; R v Taueki [2005] 3 NZLR 372 (CA).
5 Murray v R [2013] NZCA 177 at [27].
6 Griffin v R [2019] NZCA 422; Pahau v R [2011] NZCA 147.
The general circumstances are accordingly similar. In the case of those found guilty of manslaughter, the High Court used a starting point of 12 years’ imprisonment, with no separate uplift for the aggravated robbery offending.7 As the Court of Appeal explained that was for a defendant who was a joint leader of the attack and performed an instrumental role. On that basis it said a 12 year starting point was “not beyond the available range”.8 Cross-checks to a Taueki based sentence led the Court to hold it was “was plainly appropriate and within range”.9
[21] In Pahau v R the Court of Appeal dealt with manslaughter for a gang-related altercation where one person was found guilty of murder, and the others of manslaughter, with liability also arising as party liability under s 66 of the Crimes Act 1961.10 The Court of Appeal held that for a member of the group that was not a leader a 10 year starting point was within range, although a lower starting point would have been available.11 For the senior gang member playing the instrumental role involved a starting point of 13 years and that was held to be within range.12 That overall approach is consistent with the Court of Appeal in Griffin. Indeed Pahau was one of the decisions relied upon in Griffin. It provides further guidance as it addresses the starting point for participants, as well as those performing an instrumental role, which was not addressed in Griffin.
[22] The Crown have suggested that I adopt at 12 year starting point for your offending, although they say it should be 11 years for you Mr Rippon. I do not agree. The agreed summary of facts does not say that any of you were leaders, or played an instrumental role.
[23] As I say Pahau is the case that gives additional guidance on the appropriate starting point for someone guilty of manslaughter as a participant in a gang related event. Given the observation in that case that a 10 year starting point was within range, but a lower starting point was available, it seems to me a nine to ten year starting point
7 R v Chase [2018] NZHC 3332 at [77]–[78].
8 Griffin v R, above n 6, at [21].
9 At [22].
10 Pahau v R, above n 6.
11 At [87].
12 At [80].
was regarded as appropriate for the offending in that case in relation to someone who was a participant only.
[24] It is important to consider the specific nature of this particular offending when assessing the starting point however, and it is also important to assess the particular role played by each of you, as even participation can encompass different roles. It is apparent from the summary of facts that some participants had a more passive role and some received an instruction to be more active. These persons were, at least to some extent, making up the numbers.
[25] The following factors are relevant to the assessment of the seriousness of your offending:
(a)Serious violence: James Butler was killed, and Brent Butler was seriously injured by the offending.
(b)Premeditation: This was a pre-planned criminal event involving you travelling as a group to a particular address to undertake unlawful activity potentially involving violence.
(c)Multiple offenders: There were at least eight, possibly more of you, and most of you wore balaclavas and bandanas.
(d)Use of weapons: You took weapons to engage in the offending, involving at least one firearm taken up to the sunroom, and up to two other firearms located in the vehicles outside.
(e)Home invasion: The address in question was the Butler home residence, and the offending accordingly involved a home invasion.
(f)Gang offending: This was gang-related and motivated offending related to illegal drugs.
[26] There are, however, a number of features of the present offending that lead me to conclude that it is marginally less serious than the offending addressed in Griffin and Pahau. In particular:
(a)The level of violence that was pre-planned, and in fact took place in the sunroom, was of short duration and less serious. It involved pushing and shoving, and although a gun was taken into the room it may have been unloaded.13 I conclude the gun was taken into the sunroom as part of the pre-planned intimidation in an attempt to secure drugs, money or other valuable property rather than with an intention to fire it.
(b)Most of the group that entered the sunroom did not initially act with much aggression, until one member instructed them to do so, with only pushing and shoving then occurring. The group then encountered resistance, particularly when Brent Butler entered the room with an axe handle and grabbed the gun held by one of the group. The group then decided to make a hurried retreat. That retreat occurred very soon after the resistance was encountered.
(c)Your group then returned to the vehicles in an attempt to leave the scene, but the Butler brothers came after you and then took action against you in a manner that interfered with your getaway. Brent Butler grabbed the driver of the front vehicle, and James Butler began hitting at the passenger with a mallet. It was only from this point the more serious violence took place. It is relevant that the associate who was with James Butler at the address who offered no resistance was able to flee the scene without any physical injury.
(d)The violence that then occurred does not amount to self-defence. James Butler was shot and killed. Brent Butler was hit about the head and rendered unconscious. This was serious violent activity, although it went beyond what had been initially planned by your group. It can be described as excessive self-defence which reduces the seriousness of
13 In the sentencing indication I indicated that it was more likely than not to have been unloaded, but I accept that is not clear from the agreed facts, and I make no additional finding.
the offending in a similar manner to that described by the Court of Appeal in R v Taueki.14
[27] Given these factors it seems to me that a starting point of eight to nine years, rather than nine to ten years provides the appropriate range for someone acting as a participant only, depending on the form of individual participation that is involved. As I have said there are some differences in terms of the roles played by the members of the group revealed in the summary of facts. I recognise that this places the starting point at, or potentially below, band 3 in Taueki and I bear that in mind in assessing the individual starting point and the overall sentence.
[28] Before dealing with your individual starting point and then your personal circumstances I deal with two issues that are common for each of you.
Discount for guilty plea
[29] First is the discount you get for your guilty plea. Until recently each of you have faced charges of murder and other associated charges. The offer to reduce the charges to manslaughter on an unconditional basis has only occurred after the abandoned trial that I have referred to.
[30] The Crown accepts that a 20–25 per cent discount should be provided. Some distinction between you is sought to be drawn on the discounts on the basis that in respect of some of you there was a discussion before trial involving a possible manslaughter guilty plea. But this is the first opportunity they have been able to accept a guilty plea to manslaughter on an unconditional basis and without the murder charges remaining. In those circumstances it seems to me that each of you is entitled to the full 25 per cent discount.
Minimum period of imprisonment
[31] The Crown has sought a minimum period of imprisonment although not for you Mr Whareaorere given that you are subject to the three strikes regime.
14 R v Taueki, above n 4, at [32](b).
[32] A minimum period of imprisonment can be imposed under s 86 of the Sentencing Act 2002. This is a period imposed where your cannot be considered for parole. That happens when the Court concludes that the normal parole period is insufficient for holding the offender accountable, denouncing his conduct, deterrence or protecting the community.
[33] In determining the sentence these factors are taken into account under ss 7 and 8 of the Sentencing Act. A minimum period of imprisonment is only required if for some reason the period of imprisonment arrived at is nevertheless insufficient. But there still needs to be some reason why the sentence determined after considering those factors is “insufficient”.15 A minimum period of imprisonment should not be routinely imposed, and neither should it be imposed on an arbitrary basis. I have fully considered these principles in setting the sentence, and for that reason I do not propose to indicate a minimum period of imprisonment for any of you.
[34] I will now consider the position of each of you in light of the above initial conclusions.
Kemp Rippon
[35] Mr Rippon you are 29 years old. You have 24 previous convictions and you have been serving a sentence of three years five months for another aggravated robbery committed shortly after these events. You had not received a first strike warning at the time of the offending.
[36] The Crown agrees that you were not a leader and say that you were a prospect rather than a patched member of Black Power. That is why they have sought an 11 rather than a 12 year starting point. Mr Lance has suggested a starting point of between seven and eight years.
[37] As I have explained, whilst the starting point for being a participant in this offending seems to me to be in the range of eight to nine years’ imprisonment, it is apparent that participation of members of the group occurred in different ways. The summary of facts records that some members of your group were less active than
15 Sentencing Act 2002, s 86(2).
others, and at one stage had to be instructed to be more assertive in doing things. Given the Crown’s concession on your position, I accept that you were one of those who was relatively passive, and you went along to made up the numbers. For that reason it seems to me that the appropriate starting point for your role is eight years’ imprisonment.
[38] The Crown does not seek an uplift for prior offending, but you have pleaded guilty to the charge of wounding with intent to cause grievous bodily harm. As a separate charge involving an attack to the head a period of imprisonment of over three years would be appropriate. But it is appropriate here to address this offending by adding an uplift to the sentence. The Crown seek an uplift of three years for that charge. Mr Lance suggests an uplift of two to three years would be appropriate.
[39] I accept an uplift of two years would be appropriate bringing your starting point to 10 years’ imprisonment. This illustrates the importance of the starting point reflecting the actual role of the participant.
[40] I then need to consider potential discounts for personal factors. I have received a pre-sentence report, a report of restorative justice attempts, and a report on the cultural dimensions of you and your offending under s 27. You have a criminal record, but a limited record of anything that could be described as violent offending. This offending involves a major change in the offending you have engaged in.
[41] As the Court of Appeal has recently noted, ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to the individual’s offending.16
[42] The cultural report provides greater insight into what has led you to this and to where you are now. Whilst you were born in Whanganui your whakapapa is to Ngāti Tūwharetoa at Taupō and particularly to Tokaanu. But you are disconnected from your Māori cultural roots, and have been exposed to a criminal culture from an early life. Some of this was tragic. In 2007 your two year old cousin was murdered in a gang
16 Zhang v R [2019] NZCA 507 at [159]. See also Solicitor-General v Heta [2018] NZHC, [2019] 2 NZLR 241 at [49].
drive-by shooting and whilst you were in prison in 2015 your father was murdered at the whanau home. Your early life has been affected by drug use, particularly cannabis and methamphetamine and you report that you were using methamphetamine at the time of the offending.
[43] What this shows is that you have had a life without direction or cultural support. Your life has involved crime, violence and chaos. It is a result of systemic cultural deprivation. This explains, but does not excuse your conduct. It diminishes the extent of your individual culpability, but does not excuse it. It is appropriate for the Court to recognise that there are factors that have been beyond your control that explain your offending. I accordingly agree there should be a discount of approximately 10 per cent to recognise that reduced culpability, including for cultural factors.
[44] I do not give any further discount for remorse. You have report that you regret what has happened. But you and your fellow gang members you put the gang as your first priority. I see words of regret as being somewhat hollow in those circumstances.
[45] Deducting the discount of 25 per cent for your guilty plea, and 10 per cent for deprivation and cultural factors results in a sentence of six years and six months’ imprisonment.
Dwayne Fore
[46] Mr Fore you are 33 years of age. You have 22 previous convictions including for violence and firearms offending, but not for serious violence.
[47] Again there is nothing in the summary of facts that suggests that you had a leading role, and the Crown have accepted in their previous submissions that you were not a leader. This is consistent with the fact that you have not had previous convictions for serious violence. Although your position is not as clear as Mr Rippon I am prepared to give you the benefit of the doubt and see your role was also likely to have been more passive. The summary of facts records that there were a number of you who were instructed to be more active, or who did not go up to the sunroom at all.
You were not identified as being in the sunroom. For that reason I also start with a term of eight years’ imprisonment.
[48] You have also pleaded guilty to obstructing a medical officer of health during the COVID Level 4 lockdown,17 failing to stop for red and blue flashing lights,18 and two charges of reckless driving.19 While you were on bail in Auckland, and during the Level 4 lockdown you went out driving on a borrowed motorcycle without permission from the owner and while you were forbidden from driving. Police activated red and blue lights to stop you but you accelerated away, including by travelling at 100 kilometres an hour in a 60 kilometre an hour area. You also drove up on the footpath as you tried to avoid being caught. But eventually you stopped and you were arrested.
[49] I take the reckless driving charges as characteristic of the nature of this offending. The harm was the risk you posed to the public by what you did which was exacerbated by the fact that you were on bail and that you were breaching the COVID- 19 lockdown. Looked at separately I would have sentenced you to a total of six months’ imprisonment for this offending. As an uplift on your present sentence it seems to me your sentence should be uplifted by three months, or that a six month term should be reduced by three months for totality.
[50] There are then the discounts for personal factors. I have again received the report from restorative justice, and a s 27 cultural report. Again that cultural report provides me with significant background about you.
[51] I have already explained how cultural factors generally affect sentencing. You also grew up in Whanganui, and enjoy going to your local marae but know little about your Māori connections. You belong to the Te Āti Haunui-a-Pāpārangi iwi.
[52] You have a background of gang violence. Your father was a patched member of the Mongrel Mob, and you have reported all manner of criminal activity you were exposed to before the age of 10, including sexual violence, drugs, alcohol and rape. These became normalised for you.
17 Health Act 1956, s 72(d) maximum penalty six months’ imprisonment or $4,000 fine.
18 Land Transport Act 1998, s 52A maximum penalty $10,000 fine.
19 Land Transport Act 1998, s 35(1)(a) maximum penalty three months’ imprisonment or $4,500 fine.
[53] There was a change at age 12 when you began hanging out with a friend whose family was Black Power. They welcomed you into their home. They showed you respect. You say that that was the first time you had ever felt loved. Your involvement with Black Power has evolved since that time.
[54] This is another illustration of how social and cultural deprivation explains, but does not excuse the life of crime that you now lead. You have not had a stable place in society, through your connections with your iwi or otherwise. Your only identity has been with Black Power. Although I understand that background you still have personal responsibility. In your circumstances I also allow a discount of approximately 10 per cent for deprivation, and its impact on your culpability, including cultural deprivation.
[55] There is an additional dimension in your case. Whilst I provide no discount for remorse because I see it as largely hollow, there is a greater prospect for rehabilitation. Through your work with the Grace Foundation, your connection with the Seventh Day Adventist Church, you have seen a better path. This is not just a hope. You report, for example, you have reconciled with your father. You have explained that you do not want to leave Black Power because you want to assist your fellow gang members also see this path.
[56] I note, however, that despite this possible optimism, you seem to easily fall back into criminal ways, characterised by your driving offending while on bail. You still need to work really hard if you are going to change your life.
[57] But I am prepared to give you a further modest discount for your rehabilitation potential, to encourage you to work further with the Grace Foundation and your Church on your release. I give you approximately five per cent discount for these factors.
[58] From the total starting point of eight years three months’ imprisonment that involves a discount of 25 per cent for your guilty plea, and approximately 15 per cent for other factors, taking the period of imprisonment to five years and four months. I also need to give credit for the time you have spent on electronically monitored bail
which I assess should involve a deduction of six months. The final sentence will accordingly be four years ten months’ imprisonment.
Daniel Whareaorere
[59] Mr Whareaorere you are 39 years old and have 60 previous convictions including multiple convictions for offending involving violence. Normally you would receive an uplift for prior offending. You were given a first strike warning in 2014 in relation to an offence of aggravated robbery. You have also been serving the sentence of three years five months’ imprisonment for another aggravated robbery committed one week after this offending. You are subject to a second strike warning and will serve this sentence and that sentence without parole.20 It is not suggested that any exception to this requirement applies.
[60] The Crown contends that you are a senior member of Black Power and were instrumental in the events occurring and that a starting point of 12 years’ imprisonment is appropriate. Mr Keegan does not accept this categorisation and has suggested a starting point of six years’ imprisonment.
[61] There is nothing in the summary of facts that would allow me to conclude that you played a role as a leader. There is no reference in it to your seniority in the gang. There is a single reference to you phoning one of the other members of the group while the cars were on their way to the property, but that does not allow me to conclude that you were playing a leadership role. You were part of the group in the sunroom. I am required to sentence you on the facts that are agreed and there is no agreement as to your senior role. There is no concession, however, from the Crown that you played only a minor role. I accept that your starting point should reflect that you were only involved as a participant, but in a way that was not passive as with Mr Rippon and Mr Fore. In my view a starting point of nine years’ imprisonment is appropriate.
[62] No uplifts are sought for your prior criminal record, particularly given the impact of the three strikes regime. But there is also the question about discounts for personal factors. Again I have received advice from the Department of Corrections, a restorative justice report, and a cultural report.
20 Excluding the uplift for cannabis offending. Section 86C(4)(a).
[63] The cultural report again discloses your very difficult background and upbringing. Through your father you identify as Ngāti Tūwharetoa again to Tokaanu and through your mother Te Āti Haunui a Pāpārangi at Pipiriki and Jerusalem.
[64] Your family background was dysfunctional. Your father was murdered when you were a young child, and the whanau lifestyle you then lived was marked by heavy use of intoxicants and frequent violence. You also report significant bullying and racial abuse when at school. You struggle with you own psychological stability and are on medication to assist you with that. So once again you have suffered from social and cultural deprivation and a lack of identity in the way that I have outlined. This again explains, but does not excuse your conduct.
[65] For these reasons I also give you a discount of approximately 10 per cent for these factors. As with the others I give you no separate discount for remorse which I see more as an expression of words than anything else.
[66] The result is that from your starting point of nine years’ imprisonment you are entitled to a 25 per cent discount for your guilty plea, and the discount of approximately 10 per cent for deprivation and cultural factors. This leads to an end sentence of five years 10 months’ imprisonment.
[67] There is then a question whether there should be a totality adjustment given that you are currently serving a sentence of three years five months to be added to the present sentence to be served without parole. When the current term I have assessed is added this would result in a long term of imprisonment without parole. That suggests to me that there should be some adjustment for totality in light of the cumulative effect. I adjust sentence by reducing it by one year to four years 10 months’ imprisonment.
Conclusion
[68]I conclude by formally entering your sentences.
[69] Mr Rippon on the charge of the manslaughter of James Butler, and recognising the additional offence involved in the wounding of Brent Butler I sentence you to six
years and six months’ imprisonment. On the separate charge of wounding with intent to cause grievous bodily harm I sentence you to three years’ imprisonment to be served concurrently, meaning it will not be additional to the sentence of six years six months’ imprisonment.
[70] Mr Fore on the charge of the manslaughter of James Butler, and given the subsequent driving related offending I sentence you to four years 10 months’ imprisonment. On the reckless driving offences I sentence you to two periods of two months’ imprisonment, and for obstructing a medical officer of health to two months’ imprisonment and I convict and discharge you on all other charges. Again these further periods of imprisonment will be served concurrently, meaning that they do not add to your total sentence of imprisonment of four years and 10 months.
[71] Mr Whareaorere on the charge of manslaughter of James Butler I sentence you to four years 10 months’ imprisonment, which is a sentence you will serve without parole.
[72] Each of you received your strike warnings when your convictions were entered and I remind you of them. Please stand down.
ADDENDUM: Following delivery of the sentence, counsel for the Crown raised whether Mr Rippon’s sentence was also cumulative on the sentence he is currently serving. Following the earlier sentencing indication I confirmed by minute dated 8 June 2020 that it was intended to be, but that I had not turned my mind to the issue of “totality” as I had for Mr Whareaorere, and that that could be addressed at sentencing. Following the sentencing Mr Lance has confirmed that he had considered the issue of “totality” but did not further raise it because the position of Mr Rippon was different from Mr Whareaorere. I agree with that assessment and that no adjustment is required because Mr Rippon’s sentence is to be served cumulatively on the sentence he is currently serving.
Cooke J
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