R v Hakaraia (aka Box)
[2021] NZHC 1733
•10 June 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2018-083-001481
CRI-2018-083-001456 [2021] NZHC 1733
THE QUEEN v
HIKITIA RAWIRI HAKARAIA (aka BOX)
Hearing: 10 June 2021 (by AVL) Appearances:
M Wilkinson-Smith and C Middleton for the Crown S Hughes QC and A Brosnahan for the Defendant
Date:
10 June 2021
NOTES ON SENTENCING OF GRICE J
[1] Tena koutou katoa. I acknowledge all present today. I acknowledge those who passed, Mr Ratana and Mr Butler. I acknowledge the victims, those who are hurt and grieving by the offending that brings us here today. I particularly acknowledge the families here; Ms Herewini, Mr Ratana’s partner; Ms Vakatini, Mr Ratana’s mother; and Ms Bishop, Mr Butler’s daughter. I acknowledge your grief and your words. And I acknowledge your whakapapa.
[2] Today,1 Mr Hakaraia, you are being sentenced on two charges of manslaughter.2 The charges you face relate to the homicide of Mr Butler and the
1 Mr Hakaraia was sentenced orally on 10 June 2021. The written form has been edited for grammar and flow, and has been footnoted before distribution, but the substance of the decision remains unchanged.
2 Crimes Act 1961, ss 66(2) and 171: maximum penalty of life imprisonment.
R v HIKITIA RAWIRI HAKARAIA (aka BOX) [2021] NZHC 1733 [10 June 2021]
homicide of Mr Ratana, and a third for the participation in an organised group for Mr Ratana’s death.3
[3] The charges arise from gang-related incidents in Whanganui that occurred in 2018. In March, I gave you a sentence indication of 12 to 13 years’ imprisonment before further discounts were considered. I indicated that no minimum period of imprisonment (MPI) would be imposed. You accepted that indication and have pleaded guilty.
[4] Since then, a pre-sentence report, a s 38 psychological report,4 and a s 27 cultural report have been prepared and those reports are before me today.5 I have also heard today from Ms Herewini, Ms Vakatini, and Ms Bishop. I will refer to these later.
[5] Mr Hakaraia, your sentencing today will be based on the sentence indication and adjusted in light of the reports. I will take some time to carefully go through the issues relevant to sentencing. This is important both for the victims and their families present today, and for you and your whānau to hear.
Background to Offending
First homicide: Mr Butler
[6] First, I look at the background to this offending. It is accepted that you were not part of the planning that led to these homicides, you were part of the group. In relation to Mr Butler, on 22 April you and your co-defendants travelled to the home of James Butler with the intent of robbing him of drugs. He lived there with his brother, Brent Butler. You were wearing disguises. You arrived in one vehicle with Mr Fore. Mr Rippon and Mr Whareaorere were in the other vehicle with other co-defendants. There were eight to 10 people in the vehicles and the group was armed with 0.22 rifles.
[7] Mr Butler was in the sunroom with an associate when you and the co-defendants arrived. Brent Butler was eating a meal in the dining room. Mr Butler
3 Section 98A: maximum penalty of 10 years’ imprisonment.
4 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.
5 Sentencing Act 2002, s 27.
saw you arrive on the CCTV camera. Two males in balaclavas arrived at the back door. One asked if Mr Butler was inside. Mr Butler replied that he was not. When asked when he would return Mr Butler said he did not know. The two men walked down the steps from the back door before returning 10 seconds later with several other males. They kicked the door open and four to six males entered the sunroom.
[8] One pointed a firearm at Mr Butler’s associate, he then pointed the firearm at Mr Butler. He demanded to know where the drugs were. Mr Butler was pushed around and during the altercation Brent Butler entered the room armed with an axe handle to confront the intruders. A physical struggle followed, and Mr Butler’s associate managed to leave during the struggle but was confronted by a gunman who remained outside.
[9] The group of intruders then left the house pursued by Mr Butler and his brother. Mr Butler had armed himself with a short-handled mallet to strike one of the intruders. He went up to the passenger side of the car but there is no evidence of any serious injury as a result of that.
[10] Between three and seven shots were then fired at Mr Butler. The first shot missed Mr Butler. He then ran back to the steps. The next shot hit him in the back. As he ran away, he was holding his neck and coughing blood. He collapsed and died.
[11] At the same time Brent Butler was assaulted with a weapon by one of the other defendants while standing at the driver’s door of one of the vehicles. He was rendered unconscious.
Second homicide: Mr Ratana
[12] The homicide of Mr Ratana occurred four months later. No arrests had then been made in relation to Mr Butler’s death. Mr Ratana was a senior patched member of a gang. You and your co-defendants are patched members of a rival gang. Castlecliff in Whanganui is traditionally considered by your gang as its territory. Mr Ratana’s partner, Ms Herewini, lived at Puriri Street in Castlecliff about 270 metres from your gang headquarters.
[13] In July 2018, members of your gang became aware of Mr Ratana’s presence and the gang took steps to put pressure on Mr Ratana and his partner to leave. Before the killing, there were a number of instances of intimidation. In early August 2018, one of your gang members drove past slowly, apparently with the intent of “rolling” the address. That is storming inside and assaulting the occupants including, according to Ms Herewini’s friend who had arrived at the address. That friend was known to your gang and so the rolling did not occur. In the following months there were a number of alleged instances of your gang members driving past and yelling slogans. In one occasion a crowbar was thrown at Mr Ratana’s car.
[14] On 21 August, a group of your gang members began preparing for an attack. They drove through Castlecliff and Gonville collecting other members and weapons. They met at a member’s house and armed themselves using bandanas as disguises. At about 9.20 am a vehicle stopped across the road from the Puriri Street address, a co-defendant got out of the car and yelled toward the address. Mr Ratana heard this and warned others in the house to stay away from the windows. The car then drove to the Matipo Street headquarter address. You and three others left and began walking back to Puriri Street. It is alleged that this walking group were armed with metal poles, a hammer and a timber batten. For the purpose of this sentence, the Crown have indicated it was the group that had the weapons and not you in particular.
[15] The other defendants drove separate vehicles to Puriri Street, each in possession of a shotgun. You and the three co-defendants who were walking stood on the footpath yelling out phrases commonly used by your gang. Another defendant made a threat to kill everyone in the house. You and the three co-defendants walked to Mr Ratana’s car and hit it with your weapons damaging the vehicle and drawing Mr Ratana’s attention to you. One of the group continued yelling and threatening and said that Mr Ratana had a week to leave the area. Mr Ratana then came out with a loaded shotgun. That shotgun was not fired during the incident.
[16] One of your gang members got out of the car carrying a shotgun. A solid slug was then fired hitting Mr Ratana in the left side of his upper neck. He died instantly. A second shot consisting of pellets was fired from a different range and hit the front of the house. There is no suggestion you were actually involved in the shooting.
[17] Following this, you and several defendants walked to Matipo Street. You then drove in a Nissan Primera back to your address. Later that day you and the other defendants went to an associate’s house. There was some bragging about the incident. One of the defendants said that they had finally got him, and that the victim “just walked out and bang, got shot”.
[18] The police found the Primera later that evening. On 27 August they executed a search warrant at a number of neighbouring gang addresses, including the Matipo Street address. Shotgun shells and cartridges were located. A 0.22 rifle was found in a neighbouring property and a sawn-off shotgun found in the boot of a nearby vehicle. The shotgun, which fired the fatal shot, has not been recovered.
[19] You were arrested and charged, at that stage, with a number of offences in relation to both homicides.
Procedural history of these proceedings
[20] During the sentence indication Ms Hughes, on your behalf, indicated in relation to the summary of facts that, first, you were not carrying a weapon during the Ratana killing. The Crown has accepted that for the purpose of this sentencing.
[21] Secondly, you did not have any part in the planning of the altercation leading to Mr Ratana’s death. Thirdly, you had no part in the planning of Mr Butler’s killing.
[22] Ms ughes described you as a junior member of the gang. You were, she said, the archetypal foot soldier whose purpose was to be present and by doing so, lend support to those who planned. I accepted those submissions on the facts, and I do so today.6
[23] I also note that in this case the trial in relation to the death of Mr Butler was partway through when it was abandoned due to the COVID-19 lockdown. The Court, by that stage, had heard the Crown case but had not heard from the defence. Pleas of
6 See Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Brookers) at [CPA61.03].
guilty to manslaughter have been entered for all defendants except Mr Reardon in that case.
[24] On 4 September, in R v Fore, Cooke J sentenced Mr Fore, Mr Rippon, and Mr Whareaorere in relation to the killing of Mr Butler.7 His Honour accepted the 25 per cent discount for guilty plea should apply to the sentence of your co-defendant. Mr Rippon was given a starting point of 10 years’ imprisonment and, after relevant discounts were given, an end sentence of six years and six months’ imprisonment was imposed. Mr Fore was given a starting point of eight years with a three-month uplift and after various discounts an end sentence of four years and 10 months’ imprisonment was imposed. Mr Whareaorere, from a starting point of nine years’ imprisonment, received an end sentence of four years and 10 months’ imprisonment. An appeal against this decision was dismissed.8
Principles and Purposes of Sentencing
[25] I now turn to the principles and purposes of sentencing. Those purposes and principles are set out in the Sentencing Act 2002 and I must take those into account. The most relevant here are accountability, denunciation and making you responsible for your actions, as well as deterrence.9 You need to be held accountable for the harm that you have caused by your offending, to the victims, to their whānau, to the community. However, any sentence imposed must be consistent with sentences imposed in similar cases,10 and be the least restrictive outcome that is appropriate in the circumstances.11
Approach to Manslaughter Sentencing
[26] Manslaughter, with which you are charged, is a charge that arises in a variety of different fact situations with different levels of blame attributable to a defendant. For that reason, there is no general standard guidance available in sentencing on manslaughters. Sentences vary widely and the courts have referred to a number of
7 R v Fore [2020] NZHC 2290 [“R v Fore (HC)”].
8 R v Fore [2021] NZCA 28 [“R v Fore (CA)”].
9 Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).
10 Sentencing Act 2002, s 8(e).
11 Section 8(g).
cases that have some elements which are similar to your case, but none are exactly the same.12
[27] In manslaughter cases involving serious violence the courts will refer to similar cases and to guideline judgements for grievous bodily harm, such as in R v Taueki.13 The Court of Appeal in that case listed a number of factors that tended to increase the seriousness of the offending.14 In R v Jamieson the Court said:15
The present case, however, involves serious violence where serious injury (if not death) was a foreseeable outcome. We think in cases of this nature the guideline judgment of R v Taueki is of considerable assistance for manslaughter. The matters which contribute to the seriousness, or mitigate the seriousness (or not), of grievous bodily harm offending as discussed in [31]–[33] or Taueki are also relevant to the assessment of culpability for manslaughter of the present kind.
[28]The Court of Appeal also discussed this in R v Tai. It said:16
[12] In those manslaughter cases where Taueki is relevant, the sentencing Judge effectively has a choice. He or she can assess the offender’s culpability by reference to, among other things, comparable manslaughter sentencings. Another approach is to consider the matter in Taueki terms, making an appropriate adjustment for the fact that the consequence of the serious violence has been not just serious injury but death itself. A counsel of perfection perhaps would be to utilise both approaches, each providing a check on the other. In these reasons, we have tried to assess Mr Tai’s offending on both bases. We begin with a Taueki analysis, because that was the approach Potter J took and the Solicitor-General does not in any way criticise the Judge for adopting that approach. The Solicitor-General’s concern is focused on the application of Taueki to the facts of this case.
[29] The first step is therefore to set a starting point based on a comparison with similar cases which take into account the type of aggravating and mitigating factors of this offending. I will cross-check this against the three bands of offences which are set out in the Court of Appeal decision in Taueki.17 I have also taken into account a number of cases which were referred to by counsel, which I will footnote, including Edwards, Leuta and Tai. The cross-check is important. But as your counsel has noted,
12 R v Edwards [2005] 2 NZLR 709 (CA) at [14]; citing R v Leuta [2002] 1 NZLR 215 (CA) at [49]–[59].
13 R v Taueki [2005] 3 NZLR 372 (CA).
14 At [32].
15 R v Jamieson [2009] NZCA 555 at [34].
16 R v Tai [2010] NZCA 598.
17 R v Taueki, above n 13, at [34]: band one is three to six years’ imprisonment; band two is five to 10 years’ imprisonment; and band three is nine to 14 years’ imprisonment.
for an offender who is a “secondary participant”, caution should be exercised when assessing culpability solely based on the Taueki factors.
[30] Having done the check I will then move on to consider the aggravating and mitigating factors that may be personal to you, and any uplifts or discounts which should therefore follow. Included in that step is a discount for an early guilty plea that you entered after the sentence indication. And it will also consider the personal factors that I have heard about today and read about in the reports. I heard detailed submissions in March at the time of the sentencing indication. I heard further submissions today and have before me the three reports which I have referred to.
[31] Given there are two charges, I will also take into account the totality of the sentence.
Submissions
[32] I now turn to summarise the submissions that I heard from your counsel, that are contained in the written submissions that I heard in March and the further submissions I heard today.
[33] The Crown submitted that starting points of eight years, and no less than 10 years, for each of the killings of Mr Butler and Mr Ratana should be applied. That combination would result in a starting point of 18 years’ imprisonment. The Crown also sought a 50 per cent MPI. The Crown said that taking a 20 per cent plea discount, for the guilty plea, would result in an end sentence of 15 years’ imprisonment before further discounts were taken into account in relation to personal factors.
[34] Ms Hughes, on the other hand, suggested starting points of eight years and nine years for each of the homicides. Your counsel said that taking totality into account, a starting point of 15 years would be appropriate. She also sought a full 25 per cent discount for your guilty plea, setting out the reasons for your failure to plead guilty earlier and, in particular, because of the further discussions over the Ratana charges and whether they would be amended to manslaughter.
[35] Ms Hughes then said there should be no less than a 10 per cent discount for factors that could be expected to be set out in a cultural report, as well as other discounts which should be added to that. In her submission there should be no MPI imposed in the circumstances.
Starting Point
[36] I turn to look at the starting point. I first look at the offending in relation to the killing of Mr Butler. In relation to the homicide of Mr Butler, the Crown referred to a number of cases, including R v Challis,18 R v Madams,19 Pahau v R,20 R v Chase,21 Griffin v R,22 and R v Rapira.23 The Crown says on the basis of those cases and comparing them with the present offending, an eight-year starting point for the manslaughter of James Butler was appropriate. It submitted that that is the lower end of the available range. It noted that the co-defendants who took a more passive role were given starting points of eight years. The co-defendant who took a more active role received a nine-year starting point.
[37] In R v Fore,24 Cooke J distinguished this case from Griffin v R in order to reach those lower starting points.
[38] Ms Hughes also noted that the sentencing of your co-defendants, Mr Fore and Mr Whareaorere, proceeded on the basis they were not responsible for the shooting of Mr Butler, were not in possession of a firearm, and their culpability flowed from their participation in the criminal activity that led to Mr Butler’s death.25 In particular, she notes that their roles, along with Mr Rippon, were “relatively passive” and they “went along like you to make up the numbers”.26
18 R v Challis [2008] NZCA 470.
19 R v Madams [2017] NZHC 81.
20 Pahau v R [2011] NZCA 147. The Supreme Court refused leave to appeal in Pahau v R [2011] NZSC 88.
21 R v Chase [2018] NZHC 3332.
22 R v Griffin [2019] NZCA 422.
23 R v Rapira [2003] 3 NZLR 794 (CA).
24 R v Fore (HC), above n 7.
25 R v Fore (CA), above n 8, at [18], noting the findings of the High Court.
26 R v Fore (HC), above n 7, at [12].
[39] I agree with the analysis put forward by your counsel in that regard. In particular, bearing in mind parity, I fix a starting point of eight years in relation to the manslaughter of Mr Butler.
[40] In relation to the manslaughter of Mr Ratana, the Crown said a starting point of at least 10 years was appropriate. It said participation in an organised criminal group is part of this consideration. In support of its submissions the Crown pointed to a variety of aggravating factors, and said a 10-year starting point was appropriate, given the 12-year starting point adopted in Griffin v R.
[41] The Crown submitted gang warfare was involved. Mr Ratana was targeted for living in an area perceived as a territory of your gang. There had been earlier attempts to threaten Mr Ratana and his partner to make them leave the area. The alleged offending was therefore not an isolated event nor was it in retaliation, as it was in the case of Challis or Madams. You, and your co-defendants, allegedly resorted to violence to control who lived in the neighbourhood. The gang tried to enforce its own rules on the community.
[42] I note the gang violence, in the Crown’s submission, is a significant problem in Whanganui. The Crown says that deterrence is therefore a necessary factor in this case. The Crown also pointed to the fact that there were at least seven assailants involved in the alleged offending. Weapons were involved, although as I note, for these purposes you were not carrying a weapon.
[43] More importantly, all the co-defendants, as well as you, knew that firearms would be taken, and you knew that there would be a confrontation. You and your co-defendants waited until Mr Ratana was home, went to his house and taunted him until he came out. He was armed in self-defence, nevertheless, he was shot at close range.
[44] Other aggravating factors include premeditation and that his partner was threatened. The alleged offending occurred at the victim’s family home.
[45] The Crown said that any consideration of a discount for excessive self-defence must be limited. You knew Mr Ratana had a gun and planned the attack with this knowledge. It also says Mr Ratana’s gun was not fired and you and your co-defendants actively sought Mr Ratana out, taunting him to come outside, fleeing only after he was shot.
[46] In short, the Crown said you knew of the plan, you went to Mr Ratana’s house with a group with weapons, you were in gang regalia, you threatened Mr Ratana and his partner and, given your involvement with the earlier killing of Mr Butler, you should have known that there was a high danger of a serious fatal shooting occurring.
[47] On the other hand, your counsel says a starting point of nine years is appropriate, submitting there is no evidence of you having had any part in the planning of the confrontation, you did not carry any weapons and you played no part in any actual assault on Mr Ratana. Your only role, she repeated, was to be present.
[48] It is clear that this was an incident occurring in a situation of gang warfare and it was in the context of previous attempts of intimidation that you went there. Whether or not you had been a part of the planning, which I accept you were not, you lent your support by your presence. You knew what was going to happen. You knew weapons were being brought to Mr Ratana’s house and you knew there was likely to be a serious confrontation. You had been involved in the fatal shooting of Mr Butler just months earlier. That had occurred following a confrontation as well. You should have appreciated the consequences of your action ahead of time. This was the second killing in mere months in which you were involved.
[49] Ms Hughes, on your behalf, says in the circumstances given your rank in the gang, and the fact you were merely a foot soldier, should be taken into account regardless of the fact that the incidents occurred so close in time.
[50] Taking all of those factors into account I impose a starting point of nine years for your participation in the alleged offending. Cross-checking this with Taueki, the alleged offending had more than three aggravating factors present. They were pre-meditation, serious injury, the use of weapons, multiple attackers and
gang warfare.27 This places the alleged offending in band three, which carries a range of nine to 14 years.28 Taking into account, however, the particular role you played in the offending, the nine-year starting point is an appropriate starting point, albeit at the bottom of the range.
[51] I must also take into account the totality principle when imposing the sentence of imprisonment for more than one offence.29 This means I must first decide whether sentences should be served cumulatively, that is one after the other, or whether they should be served concurrently, that is at the same time. Secondly, I must ensure the total sentence is proportionate to the gravity of the overall offending.
[52] The Crown says your sentences should be served cumulatively and the overall starting point would be 18 years, which takes into account both sets of offending. The Crown cites deterrence as a predominant factor, and also points to the factors of gang warfare, violence and the fact that two people have been killed. In addition, the second killing occurred only months after the first. You remained an active participant, albeit you have been described as a foot soldier, you knew weapons were involved, including firearms, and you knew you were taken to Mr Ratana’s house for the purpose of a confrontation.
[53] Ms Hughes, on your behalf, said the overall starting point should be one of 17 years’ imprisonment. She said a totality analysis would reduce this to 15 years’ imprisonment.
[54] Standing back and taking into account the totality principle I come to the conclusion that 18 years, as a starting point, in the circumstances is too high. The starting point of eight years, nine months in relation to each killing would result in a cumulative sentence of 17 years’ imprisonment. However, I reduce this by one year to arrive at a starting point of 16 years’ imprisonment for totality. In my view, this reflects the overall gravity of the offending.
27 Taueki, above n 13, at [31].
28 At [34].
29 Sentencing Act 2002, s 85.
[55] Therefore, for the killing of Mr Butler, a starting point of eight years’ imprisonment is appropriate. For the manslaughter of Mr Ratana, a starting point of nine years’ imprisonment is appropriate. With totality taken into account, a starting point of 16 years’ imprisonment is taken.
Personal Factors
[56] I now turn to the personal factors. Once the starting point has been determined, it is then adjusted to reflect any aggravating or mitigating factors relating to your personal circumstances. This involves considerations under ss 8 and 9 of the Sentencing Act.
[57] In view of the nature of your previous convictions I do not consider an uplift for those is warranted. Nothing in your criminal record, while extensive, is as serious as the present offending. It consists mainly of convictions related to drink driving and failure to meet terms of community sentences. You had no previous convictions for violence. The alleged offending is a rapid escalation in the seriousness of your offending.
[58] I now turn to the matters raised in the cultural report. This report is intended to assist me in sentencing you. It draws my attention to relevant issues which I am able to take into account in relation to past social, cultural, or economic deprivation where that deprivation has some causal relationship with the offending.
[59] The report that I have before me, including the addendum, narrates your life’s events. They have led you here today. Your mother has had a significant input into the report. She notes she faced significant challenges in her life and expresses the concern that the choices she made, and the dependence she had on you even from the time you were a small child, put you on the path that has led you to the gang association and to where you are today. Your mother was honest with the report-writer; your childhood was one of deprivation, continual disruption and lack of support. Violence to you and your family seems to have been normalised. You left school, despite early academic success, at only 13. You did not have the childhood that you deserved. It is clear your mother harbours guilt over some of the choices she made, for which you suffered during your childhood. You were immersed in gang culture early on, although
your mother found her way out of that and was surprised and upset when you took to that life.
[60] In Solicitor-General v Heta,30 Whata J noted that cultural issues in particular, as they result to systemic Māori deprivation where they can be linked to the offender and the offending should be taken into account in sentencing as they have a causative effect.31 You whakapapa Māori on both your parents’ sides. I acknowledge Tainui, your canoe, Tararua, your maunga, Ōtaki, your awa, Raukawa, your marae. When I speak to you, I also speak to your hapū, Ngāti Maiotaki, and your iwi, Ngāti Raukawa. Your mother has lifted herself out of the life that she had, by education and hard work. She is now centred on Te Ao Māori. I note you are also exploring that with your reo, at which you have excelled, and tikanga. In addition to your connection with Ngāti Raukawa you also whakapapa to Whanganui iwi and Ngāti Porou, with whom you are less familiar.
[61] The report considers the two drivers of your offending were your gang affiliation and your methamphetamine addiction. The report notes that your gang affiliation exposes the interwovenness of a life of deprivation, disadvantage, adversity and trauma. It coloured your whānau life, which was disconnected, dysfunctional and affiliated with gangs, had fundamental elements of abandonment, neglect and family violence and your limited education.
[62] Stepping back, there is a narrative of intergenerational disconnection from your whakapapa. That also leads to your reliance on, in your case, methamphetamine. Colonisation disrupted the traditional ways of life. More broadly, it introduced alcohol and deprived people of land and access to natural resources. The courts are becoming increasingly aware of the current and ongoing impact of this and the effect on offenders as a matter of institutional knowledge.32 Colonisation, institutionalisation
30 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
31 At [65].
32 R v MacDonald [2021] NZHC 224 at [58]; citing Moana Jackson He Whaipaanga Hou: The Māori and the Criminal Justice System: A New Perspective (Department of Justice, February 1987) at 40; and R v Royal [2020] NZHC 1321 at [35]; citing He Waka Roimata: Transforming Our Criminal Justice System (9 June 2019, Te Uepū Hāpai i te Ora Safe and Effective Justice Advisory Group). For the ongoing effect of colonisation, see Moana Jackson “Where to next? Decolonisation and the stories in the land” Imagining Decolonisation (Bridget Williams Books, Wellington, 2020) 55.
and substance abuse create a complex web of cause and effect. There is also a clear connection with the rise of gangs.
[63] It is in the gang world that you found a place to belong. You have been immersed in it in your entire adult life. In terms of drugs and alcohol, you began experimenting with alcohol and cannabis at 11 and this continued through your life. You were introduced to methamphetamine in 2017. You told the report-writer that at the time of the offending you were heavily addicted, although that must be put in perspective. You deserve credit for the fact that you were working up until these events.
[64] The report outlines the diminished state of your wellbeing, using Te Whare Tapa Whā as the framework for the four cornerstones of health.33 All four, the spirit, mind, body and family cornerstones were detrimentally affected in your life.
[65] The report also sets out your steps toward rehabilitation. You were determined to secure a place in the Te Tirohanga, the Māori Focus Unit, at Whanganui Prison, speaking to the broader need to reconnect with your cultural identity and te Ao Māori.
[66] The report-writer concludes that your gang affiliation and methamphetamine addiction demonstrate a nexus with your offending that mitigates culpability. As Ms Hughes put it, that if you had been part of her family, you would not be here today.
[67] A mental health report is also before me. That report notes your offending occurred within a context of attitudes that put your needs before the rights and needs of others and of substance abuse and negative peer influences. It concluded you did not have a mental disorder, nor any delusions. The report characterised your childhood as unstable and chaotic due to your parents’ antisocial conduct and alcohol abuse. So, you turned to gangs for a sense of family connection and attachment. This led to negative peer associations.
33 This is in reference to Tā Mason Durie’s Te Whare Tapa Whā model of the four cornerstones of Māori health, being te taha tinana (physical health), te taha hinengaro (mental health), te taha wairua (spiritual health) and te taha whānau (family health).
[68] Moving forward it notes that it is promising that you have distanced yourself from such influences while in custody, focusing instead on strengthening your cultural identity, which will be protective in the long term. The severity of the offending means however, that any treatment will need to be intensive in nature and done in conjunction with opportunities to access culturally-based programmes.
[69] The report recommends treatment to address offence-related needs, referral to an alcohol and drug treatment service, and that in the future you should mentor other youths in relation to their cultural identities.
[70] The pre-sentence report is also useful. It suggests you have genuine insight and remorse and you do not justify your behaviour, but it explains how you came to be in your position. Ms Hughes says you are salvageable. That if you want to move on and live a good and purposeful life you can do so. You have also adopted Christianity while in prison.
[71] The report speaks of your remorse and your willingness to engage with restorative justice, although it was not possible in the circumstances. You have acknowledged to the report-writer the ongoing impact of your actions. You have also made an effort in terms of your education. The report notes you are returning to te Ao Māori, having once been brought up in it, and that you practice tikanga Māori. Since your stay in remand, you have completed a tikanga Māori programme and te reo Māori levels 2 and 3, as well as completing a creative writing course. The report notes that you have whānau support from your mother and other whānau. Your mother has said she is not supportive of your involvement in gangs and has made it clear that her support will end if you continue your involvement into the future. I note that you want to move back to your childhood home in Ōtaki, which holds a better future for you.
[72] The report notes your lifestyle was unstructured and chaotic and marred with substance abuse. You told the report-writer you have not used substances since in custody and you would like to be considered for the Drug Treatment Programme.
[73] Importantly, I come to the victim impact statements that we have recently heard. Three victims gave their impact statements in court today. Mr Ratana’s partner,
Ms Waiora Herewini, spoke of how they would have had a long and happy future together. They had plans. Now, all she has is ongoing grief. Her world has changed forever. She lives in constant fear. She has had to start again and disrupt her own children. So, the cycle continues. She also talks of the financial costs of having to do this. The loss of Mr Ratana was huge for her and the grief and anger that she feels has left her living a nightmare.
[74] Mr Ratana’s mother, Ms Rangitaumata Vakatini, spoke of the serious impact on her health, her sleep, and her ability to operate day-to-day, of the loss of her son, her only child. Mr Ratana’s children now do not have a father. She recounted the stress and trauma of the day she found out she had lost her boy. She had to move from Whanganui. That has created a financial burden. She went through very difficult times from which she is only now emerging. Ms Vakatini spoke of how she now still feels lost and while justice should be served, nothing will bring back her boy. Yet, through all of this she has chosen to forgive you. We were honoured to see her dignified forgiveness of you. Now, however, her life has changed for the worse. She will now be the father to Mr Ratana’s children.
[75] Ms Bishop, Mr Butler’s daughter, outlined the grief and anger that she and her whānau felt at his death. Her sense of unrest is clear. The cycle perpetuates. She said that no sentence would ever be long enough, and you have ripped out their hearts.
[76] The victims spoke from their hearts and their loss will never go away. They will live with it every day. This loss is not only to them, but to the children and to the wider whānau, and also the community.
[77] You did have a disadvantaged background of alcohol abuse, physical abuse and family violence. Education was not awarded any priority and you left school at the earliest opportunity. The gang appears to be the only place that you thought that you would be home. You also found yourself needing the support of methamphetamine.
[78] The reports also suggest you have now taken many self-reflective and proactive steps to rehabilitate. These steps indicate you trying to atone, in some sense, for what has happened, although that will never be possible. The steps also connect
you to whānau and your desire to return home. They acknowledge your attempts to address your drug addiction. In terms of the mind, you engage in te Ao Māori and creative writing.
[79] Strengthening the four cornerstones of health suggests there is hope for your future if you are willing to continue to commit. However, a significant concern is your ongoing connection with a gang. You mentioned, to both the cultural and pre-sentence report-writers, that you consider them whānau. Your gang affiliation has been identified as having a causative impact on your offending. The Crown notes that upon release this ongoing allegiance will increase your risk of offending and it cites the fact that you remained with a gang following the Butler homicide and very shortly after you were involved with the homicide of Mr Ratana.
[80] The cultural report lays out the context. The institutional and systemic reasons for the rise of gangs were the product of colonisation and the forced breakdown of social structures. They, however, created a significant disconnect from fundamental values and norms held in te Ao Māori. You are now being asked to leave this group that you consider whānau. You told the cultural report-writer you wanted to balance your devotion to the gang while living a crime-free life, which you said was possible by reconnecting with your culture and implementing your learning into the gang.
[81] While I take into account your deprivation, social, economic and cultural, and the steps toward rehabilitation and remorse, you and only you are responsible for the choices that you made, which involved you in the deaths of Mr Butler and Mr Ratana. You are responsible for going along, as part of the support team, when it was inevitable there would be violence, if not death, as a result. The second death occurred only months after the first, so it must have been very clear to you what the consequences of that confrontation would be. Yet you decided to support it and be part of it again. Some misguided loyalty to the gang took you there.
[82] You are also responsible for the choice that you continue to make to be with the gang. That is a choice that risks losing your mother, who is opposed to it, and she knows well where that association will inevitably end. Even though Ms Hughes describes you as a loyal foot soldier, it is because of you, and people in the same
position as you, that the continued violence being perpetrated by the gangs in Whanganui continues. And so, the continuing cycle of tragic losses and broken families goes on.
[83] You are also responsible for choosing to take meth. You blame that as part of the reason you were involved in the offending. Your meth habit was not connected to the offending.
[84] Ms Hughes says that all the reports suggest a global discount of somewhere in the region of 30 per cent. This is based on the uplifting pre-sentence report, supported by the cultural report which make it clear the issues leading to dislocation have been preordained by virtue of circumstances of birth and the life you were born into.
[85] The Crown disagrees. It says the reports fail to draw clear linkages between your methamphetamine use and the offending, apart from poor decision-making.34 And says the methamphetamine use was not a significant cause of offending, unlike the case in Zhang.35 It points to your continued employment as a hand at the meat works during the offending and during the time of your use of the substance. The Crown says you voluntarily consumed this, therefore no discount should be applied for the methamphetamine use.
[86] The Crown also emphasises two people have been killed as a result of the offending. This has caused a significant impact on victims’ families and the community. It is the involvement of people in positions like yours that has seen the escalation of gang violence in Whanganui.
[87] However, you show prospects of rehabilitation. You are clever and did well educationally when you put your mind to it. But this must be tempered by the risk of re-offending which is much higher with your ongoing gang connection. While I take as a genuinely-held intention that by reconnecting with your culture you can bring these learnings to the gang, many, many forces will be exerted on you if you retain your gang association. They will pull you toward criminality.
34 Davidson v R [2020] NZCA 230 at [33]–[34]; citing Arona v R [2018] NZCA 427 at [59].
35 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[88] Importantly, the cultural report has stated that aside from the collectivism most other values and norms sit in conflict with one another when comparing Māori culture and gang culture. Your mother has also noted her support is contingent on you leaving the gang, although she continues to support you now. In practice, this is a decision for you. A difficult decision, I recognise. You face a long period of imprisonment and you will face inevitable tensions based on your choice of association.
[89] For the time being, however, I must weigh up these risks as they apply to rehabilitation and offending.
[90] You have indicated genuine remorse, according to the pre-sentence report- writer. But in the circumstances that has not been expressed in any concrete way and it must be said that whatever remorse you had after the first tragedy did not stop you from participating in the second, nor does it motivate you to disassociate with the gang. I do not consider a discrete discount for remorse is appropriate in the circumstances. In any event, it is to some extent recognised in the guilty plea discount to which I refer shortly.
[91] For your prospects of rehabilitation, taking into account the other risks and your remorse, a discount of being between 10 to 15 per cent is appropriate. The issues are interwoven with your personal background and cultural factors, and a global discount is appropriate. Considering all the above factors, I would give a global discount of 20 per cent.
Guilty Plea
[92] I turn to the guilty plea. I indicated a discount of 20 per cent in the sentence indication as you pleaded after the sentence indication was given. I intend to apply that discount. As I said, the full discount of 25 per cent made available in Hessell,36 would reflect a guilty plea being entered at the first reasonable opportunity. Alongside this the Court is required to enquire into the circumstances of a case,
36 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
including the timing of the plea, the strength of the prosecution case and whether facts were in dispute, as well as assistance given to the police in relevant circumstances.37
[93] As I mentioned at the sentence indication, your pleading after the sentence indication was not the first opportunity. I accepted there were tactical reasons to delay that matter. However, they were matters that should not have delayed the entering of the plea to the Butler manslaughter.
[94] Looking at all the circumstances, including the timing of the plea, taking into account the strength of the prosecution’s case, the fact that a pandemic intervened, which did delay many matters, I consider that you should be given a reasonable discount, but not the full 25 per cent. I consider it should be 20 per cent.
[95] In accordance with Moses,38 I take the two-step approach to sentencing, as urged by Ms Hughes. The first step is the starting point, which I set at 16 years’ imprisonment. The second step is adding together all the discounts and subtracting that total from the starting point.
[96] I have given a global discount of 20 per cent for your guilty plea and a 20 per cent global discount for the other factors I have mentioned. This is not a mathematical exercise. I stand back and look at all the factors. What is immutable is the loss of two lives and the ongoing generational losses to the Ratana and Butler families.
[97] The result I reach is that a final sentence should be nine years and seven months for both sets of offending.
Minimum Period of Imprisonment
[98] I now turn to the minimum period of imprisonment. I reach the same conclusion as I did in my sentence indication, being that no MPI should be imposed. I reiterate those reasons as follows.
37 Hessell v R, above n 36, at [73]–[74].
38 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
[99] Section 86(2) of the Act provides a court may impose an MPI if the period is otherwise applicable. In this case I would have had to find that a third of the end sentence would be insufficient to:
(a)hold the offender accountable for the harm done to the victim and the community by the offending:
(b)denounce the conduct in which the offender was involved:
(c)deter the offender and other persons from committing the same or similar offences:
(d)protect the community from the offender.
[100] In the sentencing of your co-defendants, Mr Whareaorere received no MPI as he was to serve his sentence without parole due to the three strikes legislation. No MPI was imposed for Mr Fore given his “passive role”. Mr Rippon would have been given an MPI, however, he received a cumulative sentence in relation to another charge. No MPI was imposed given his overall culpability.
[101] The Crown submits that an MPI of 50 per cent is appropriate. It notes the purposes of protecting the community and deterrence. Your counsel says a sentence with no MPI would more than adequately addresses the criminality.
[102] A major factor in considering the MPI in this case is the fact of the seriousness of the offending and the fact that the two manslaughters or homicides occurred within such a short space of time. The Crown points to this as the basis for suggesting an MPI. There was a short time span in which Mr Hakaraia was involved in two gang killings despite the fact he was only a foot soldier, he was there in support and he knew what was likely to happen particularly in the Ratana case. Ms Hughes emphasised the fact that you were not part of the planning, nor were you involved directly in the altercation. You were the support.
[103] Ms Hughes, when making submissions during the sentence indication, said the factors that she has now highlighted in relation to the s 27 report, should be taken into account in this regard as well.
[104] Standing back and taking into account the sentence starting point, the possible range of final sentence in light of the reports, and the sentence which I have imposed, I consider that at this stage that it is not appropriate to impose an MPI.
[105] In relation to the strike warnings, only one strike warning was given despite you being convicted for both killings. A second strike warning is not to be given as neither offence occurred following a first strike warning.
Result
[106] Mr Hakaraia, I now sentence you to nine years and seven months’ imprisonment. I impose no minimum period of imprisonment.
[107] In relation to the third charge for participation in an organised group in relation to Mr Ratana’s death, that will be served concurrently with the sentence that I have indicated. That is a sentence of three years’ imprisonment, to be served at the same time as the sentence of nine years, seven months that I have imposed in relation to the two manslaughter charges.39
Grice J
Solicitors:
Wilkinson-Smith Lawyers, Whanganui, for the Crown.
39 Addendum: The breakdown of the sentences are four years and six months’ imprisonment for Mr Butler’s manslaughter and five years and one months’ imprisonment for Mr Ratana’s manslaughter, after applying the relevant and proportionate discounts and considering totality.
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