R v Harder

[2025] NZHC 1321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-004331

[2025] NZHC 1321

THE KING

v

RICKY HARDER

Hearing:	27 May 2025
Appearances:	P R McNabb for Crown M M Ryan for Defendant
Sentenced:	27 May 2025

SENTENCE OF ANDERSON J

Solicitors:

Meredith Connell, Auckland

R v HARDER [2025] NZHC 1321 [Redacted] [27 May 2025]

Introduction

[1]    Mr Harder, you are being sentenced today, having pleaded guilty to one charge of kidnapping1 and one charge of injuring with intent to injure.2 You accepted a sentence indication I gave on 1 October 20243. At that time, I only provided a brief summary of my reasons. I will set out my full reasons today. I also consider the impact of personal factors in light of the reports I have now received.

Summary of facts

[2]I will first outline the facts of your offending.

[3]    At about 4 am on Sunday 28 May 2023, your co-defendants kidnapped the victim over alleged disrespect towards the girlfriend of one of them at a bar earlier in the evening. Two of your co-defendants, Mr Israel Lama and Mr Nathan Tuaiti, are patched members of the Head Hunters and the King Cobras respectively. At the time of your offending, you were a prospect for the Head Hunters.

[4]    Your co-defendants took the victim to a Head Hunters address in Helensville, and proceeded to commit severe acts of violence against him. You arrived at the address at about 7.30 am. You came because Mr Israel Lama called you and instructed you to go there.

[5]    When you arrived, the victim was naked with his hands bound. He had already been severely assaulted by your co-defendants. You went up to him and called him ugly and a “fucking disgrace”. You then hit and kicked the victim several times. At one point, you struck him across the face with an aluminium pole. While you were there, others in the group also took turns beating the victim and striking him with the pole. You also smacked the victim in the face, chest and back with a belt which was filmed by one your co-defendants.

1      Crimes Act 1961, s 209(b), maximum penalty of 14 years’ imprisonment.

2      Section 189(2), maximum penalty of five years’ imprisonment.

3      Attached.

[6]    You left the address about 30 minutes after you arrived. The victim was detained at the address until the early hours of the following morning.

[7]    The victim sustained multiple serious injuries as a result of the offending group’s actions. Some of the lacerations to his body and bruising or swelling to the face may be due to what you did to him.

Victim impact

[8]    The effect on the victim of the events in which you were involved is profound. He continues to suffer ongoing pain because of the injuries he received. He was subjected to a terrible ordeal that you participated in.

Starting point

[9]    Having regard to the principles of sentencing,4 I turn to the sentencing process. I first address the starting point for the injuring charge. I then apply an uplift for the kidnapping charge.

[10]   In setting a starting point for the injuring with intent to injure charge, I apply the guidelines and principles set out in a case called Nuku.5 This adapts a test that was first set out in another case called Taueki.6 Between them, the two cases identify characteristics that, if present in offending, constitute an “aggravating” feature that makes the offending more serious. Under Nuku, the offending is then sorted into different categories, or “bands”.

[11]There are five aggravating features present in your offending. These are:

(a)the presence of multiple attackers;

4      Sentencing Act 2002, ss 7 and 8.

5      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

6      Nuku v R adapted the guidelines set out in Taueki v R [2005] 3 NZLR 372 (CA) for violent offences involving intent to cause injury, as opposed to intent to cause grievous bodily harm, which was the focus in Taueki v R.

(b)blows to the head;7

(c)the vulnerability of the victim;

(d)the harm to the victim; and

(e)the gang-related aspect to the offending.

[12]   In the bands set by the cases I referred to, Band 3 involves offending where there are three or more aggravating features and a high level of violence. As a result of the aggravating features just described, your offending falls into Band 3.

[13]   Band 3 offending attracts a starting point of between two years and five years.8 Your attack on the victim was certainly serious. However, I accept that it was not of such a high level that it justifies a starting point at or close to the five-year statutory maximum for this offence. The victim suffered some terrible injuries, but there is no evidence to show that you were responsible for the most serious of those which occurred before you arrived. Nor was your attack prolonged.

[14]   Likewise, although this offending took place in a gang context, it was not in the nature of gang warfare, and I take into account the junior role you had within the gang structure as a young prospect.

[15]I come to a three-year starting point for the injuring with intent charge.

[16]   As for the kidnapping charge, I take into account that you were not involved in taking the victim to the address and had only a short involvement in the kidnapping aspect. I consider that a six-month uplift is appropriate.

7      Weapons were also used by Mr Harder, namely an aluminum pole and a belt. However, the use of a weapon only counts as an aggravating factor when blows to the head are not an active feature of the offending: see R v Taueki, above n 6, at [31(e)].

8      The statutory maximum for offending under s 189(2) is five years.

[17]   This results in an overall starting point of three years and six months’ imprisonment, or 42 months. This is broadly consistent with the comparator cases that your counsel and counsel for the Crown provided to me.9

[18]   In setting the overall starting point, I acknowledge the extreme vulnerability of the victim when you arrived, which would have been obvious to you. You chose to join in the violence. However, I acknowledge that your culpability in the offending is considerably less than the offending group who kidnapped and tortured the victim over a nearly 24 hour period. As well as not being involved in the initial kidnapping, you were not present during the particularly sadistic elements of the assault. You came to the Helensville address only after being instructed by a gang member to do so and were there, as I have said, for a relatively short period.

[19]   Accordingly, having regard to the principle of totality, a 42 month starting point is appropriate.

Personal factors

[20]   Mr Harder, I now turn to those factors that are personal to you, and consider whether any uplift or reduction should be imposed for them.

[21]   I adopted a 20 per cent reduction for your early guilty plea.10 I also applied a 10 per cent reduction for your youth. You were 19 at the time of the offending. There is a substantial body of authority on the neurological development of young people and their impaired ability for rational and consequential thinking.11 There are elements of this in the negative influences you allowed yourself to come under and what you did in response to them on the day of your offending.

9      Turner v R [2018] NZCA 175; R v Keefe [2016] NZHC 2569; R v Ohlson [2021] NZHC 3499; R v Hona [2014] NZHC 12; R v Corbin [2016] NZHC 2570; R v Tregidga [2021] NZHC 3498. In the latter case, although five years was adopted as a combined starting point where (as here) the defendant came late to the kidnapping, the defendant had come voluntarily to the address and the sentencing judge saw the assault as particularly nasty, with the defendant using a lit cigarette to burn the victim’s eyelids and shoulder when the victim was broken and defenceless.

10 Charged in July 2023; review of Police disclosure was interrupted by the birth of first child, in January 2024; resolution discussions from April 2024 until sentence indication in September 2024; trial had been scheduled for 28 July 2025.

11 Churchward v R [2011] NZCA 531.

[22]    Your counsel now seeks a further 25 per cent reduction for other factors. Specifically, she seeks  a  5 per cent  reduction  for  personal  background  factors,  10 per cent for your cognitive issues, and 10 per cent for remorse, rehabilitation, your previous good character and compliance on bail. In response, the Crown instead says that further discounts totalling 15 per cent are available.

Personal background factors

[23]   I first consider your personal background. As set out in the reports I have received, your childhood was positive. You have been raised in a loving family with hard working parents. You were impacted by the death of a brother [REDACTED] when you were 13 years old. This appears to have marked a point when you began to associate with negative peers, use alcohol, and lose interest in school. Your brother had been associated with a gang.

[24]   On leaving school at 16 years, you started to associate with the Head Hunters through those you worked with. The Alcohol and Other Drugs report states that you also developed an alcohol use disorder. You gave the report writer an account of having consumed one or two packs of 18 beers at the time of your offending. The Crown observes that this account is at odds with CCTV footage showing you driving to the scene without signs of impairment.

[25]   I accept that you had consumed alcohol prior to coming to the address and that your alcohol use has contributed to a drift towards negative influences. However, I do not accept that your decision-making at the time of your offending was grossly impaired by an alcohol addiction. I don’t understand your counsel to suggest this either.

[26]   I also acknowledge that your brother’s death [REDACTED] has had a profound effect. However, I accept the Crown’s submission that your personal circumstances do not warrant a further specific additional discount. Your involvement with anti-social peers and your present offending is explained by your youth, for which you have already received a 10 per cent discount.

Cognitive issues

[27]   There is a further aspect to consider. A psychologist’s report has identified you as in the very low range for cognitive functioning, in the 5th percentile. Relative to others of the same age you tested as having particular difficulty with inattention and impulsivity.     You   act  without  fully  considering  the  results  of  your  actions.     I acknowledge that your cognitive issues contributed to your offending. I also acknowledge that prison will present particular challenges for you. I apply a five per cent reduction for your cognitive issues.

Remorse, rehabilitation and good character

[28]   Additionally, your counsel submits that a 10 per cent reduction should be applied for your remorse, rehabilitation and good character.

[29]   It is true that you have no criminal history. However, any discount for previous good character needs to be tempered by the fact that you were prospecting for the Head Hunters at the time of your offending. Nor does your good compliance while on bail justify a discrete discount.

[30]   However, I acknowledge, as does the Crown, that you have made real efforts to rehabilitate yourself and have distanced yourself from your former lifestyle and associations. You have participated in rehabilitative programmes, including for substance abuse treatment and a non-violence course. The feedback from those programmes has been very positive.

[31]   I also accept that you are genuinely remorseful for your offending. In your own words to one of the report writers you feel “so bad” for what you did that day and have reflected on the impact it has had on the victim.

[32]   I recognise that remorse is best considered separately from rehabilitation and good character. A five per cent reduction for remorse would be appropriate I adopt 10 per cent as a total discount for the remorse and your rehabilitation efforts. The Crown also accepts that 10 per cent is available for those factors.

End sentence

[33]   Applied to the starting point, the discounts for early guilty plea, for your youth, your cognitive issues and your rehabilitation efforts and remorse result in an end sentence of just over 23 months’ imprisonment. Standing back, I consider that is an appropriate sentence. That qualifies as a short term of imprisonment which requires me to consider whether to commute your sentence to one of home detention.12

Home detention

[34]   The law provides that I may impose a sentence of home detention if a less restrictive sentence is insufficient, and if I otherwise would have imposed a short-term sentence of imprisonment.13

[35]   Any sentence I impose must hold you accountable for and denounce your conduct, as well as to help promote a sense of responsibility within you for what you have done. The experience the victim was subjected to is utterly reprehensible. Inevitably, it will have a lasting impact on him. I do not think that a community-based sentence is sufficient.

[36]   However, as the Crown emphasises, you have a very different profile to your co-defendants. As already discussed, you had a relatively limited role in the offending against the victim. You only went to the address because you were instructed to do so by Mr Lama, and you were there for only 30 minutes. Your culpability is wholly different than theirs.

[37]   You have good prospects  of rehabilitation and reintegration.  You  are only  21 years old and were 19 at the time of your offending. As I have said, since your arrest and release on bail, you have made very positive progress. Your compliance with your bail conditions has been spotless. You have demonstrated through this that you do not present a risk to society. You have engaged well in the rehabilitative programmes I discussed earlier. You now share a one-year old daughter with your

12     R v Vhavha [2009] NZCA 588 at [31].

13     Sentencing Act 2002, s 15A(1).

partner. This has assisted you to change focus. You have developed an insight on risk factors that contributed to your offending. These are all very encouraging signs.

[38]   Reflecting all of this, the Department of Corrections recommends a sentence of home detention in your case. The Crown also acknowledges that the purposes and principles of sentencing can be met with a sentence of home detention.

[39]   In contrast, imprisonment carries with it an increased risk of you falling under gang influences again. Your cognitive difficulties would make prison a challenging environment for you to negotiate. To send you to prison now would risk permanently derailing the impressive progress you have made. Imprisonment would also have serious effects on your relationship with your infant child.14

Result

[40]Mr Harder, please stand.

[41]   Mr Harder your end sentence is a period of 23 months imprisonment. Evaluating all the circumstances I commute your end sentence to a period of 12 months’ home detention. You will serve this at the address approved in your May PAC report. You will also be subject to the special conditions recommended in that report.15 Those same conditions will apply for six months post-detention.

[42]   Some final words to you, Mr Harder. You are fortunate in having the love and support of your parents, partner and siblings. At your young age, you have the potential to leave the previous negative influences behind and to contribute positively to society. You have an infant daughter who is relying on you to be there for her. You have said that she has given you a purpose in life and made you step up. Please don’t let her down.

14 In cases where the offender is on the cusp of a sentence of home detention, the interests of children are a particularly important consideration: see Leota v Police [2023] NZHC 916; R v Maru [2023] NZHC 790; MacDonald v Police [2024] NZHC 3106; and Patuwai v Police [2024] NZHC 3280. The interests of children whose parents are being sentenced is becoming an increasingly important consideration under the current sentencing framework, as affirmed by the Supreme Court in Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

15 Special conditions attached as Schedule A.

[43]Mr Harder, please stand down.

Anderson J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS

PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-004331

[2024] NZHC 2841

THE KING

v

RICKY HARDER

Hearing:

1 October 2024

Appearances:

P McNabb for Crown

I Stewart for Defendant

Judgment:

1 October 2024

SENTENCE INDICATION OF ANDERSON J

Solicitors:

Meredith Connell, Auckland

[1]    Mr Harder, you face charges relating to the alleged kidnapping and violent offending against the complainant in May 2023. You and six other co-defendants are for trial on 28 July 2025.

[2]    You seek a sentence indication. This is an indication of the sentence you would receive if you entered guilty pleas in the near future. If you decline that indication and you are convicted at trial, you will be sentenced on the facts as the trial Judge finds them to be.

[3]You are seeking a sentencing indication on the following charges:

(a)a charge of kidnapping;1 and

(b)a charge of injuring with intent to injure.2

[4]    You face other charges relating to the same events, but the Crown has said that if you accept the sentence indication it will not proceed with those other charges.

[5]    Mr Harder, before I start, an initial comment on my approach. Some judges on a sentencing indication offer full sentencing remarks as if they were passing sentence. Others simply provide the key information to give the indication. I intend to largely take the “key information” approach. The time for full sentencing remarks will be if the indication is accepted, a guilty plea entered, and a public sentencing follows.

Agreed summary of facts

[6]    A summary of facts has been agreed for the purposes of giving this sentence indication.

[7]    In brief, it is alleged that at about 4 am on Sunday 28 May 2023, your co-defendants kidnapped the complainant, over perceived conduct at a bar earlier in the evening.

1      Crimes Act 1961, s 209(b), maximum penalty of 14 years’ imprisonment.

2      Section 189(2), maximum penalty of five years’ imprisonment.

[8]    The complainant was taken to a Head Hunters address in Helensville where he was detained and subjected to a number of violent acts by your co-defendants.

[9]    The following morning, one of the defendants called you and instructed you to go to the address. You arrived at the address at about 7 am.

[10]   When you arrived, the complainant was sitting naked on the ground with his hands bound. He had already been assaulted in various ways by other defendants. You went up to him and said “You’re fucking ugly bro, you’re a fucking disgrace.” You then hit and kicked the complainant a number of times, struck him across the face with an aluminium pole, and smacked him in the face, chest and back with a belt. This was filmed by one of your co-defendants.

[11]   Others in the group also took turns smacking the complainant with the pole while you were present. You left the address after approximately 30 minutes. The complainant remained detained until the early hours of the following day.

Other information/submissions

[12]    I have considered the written and  oral  submissions  from  your  counsel,  Ms Stewart, and Ms McNabb for the Crown. The complainant’s victim impact statement has been provided. Not surprisingly, the offending plainly has had very significant consequences for him.

The sentence indication

[13]   In its approach to sentencing, the Court identifies a starting point incorporating aggravating and mitigating features of the offending. Adjustments are then made for any personal aggravating and mitigating factors.

[14]   In a sentence indication, a Court may have no or limited information on personal aggravating and mitigating factors apart from taking into account the proposed guilty plea. In this case, I have some information relevant to your personal mitigating factors and I will refer to this in due course.

[15]   First, I consider the starting point for the charges. In the present case, your violence towards the victim was more serious than your role in the kidnapping, which was relatively brief. I adopt the Crown’s approach of taking a starting point for the injuring charge with an uplift for the kidnapping.3

[16]   I would apply a starting point of three years for the injuring offending and apply an uplift for the kidnapping of six months, resulting in a starting point of three years and six months. I would reach the same outcome taking a global approach. This starting point is consistent with what both the Crown and your counsel have submitted are appropriate and you heard what the Crown and counsel said today as well.

[17]There are no personal aggravating factors.

[18]In terms of personal mitigating factors:

(a)You were 19 at the time of the offending. The Crown acknowledges some discount is appropriate for your youth. I do not have full information on your personal background. I advise that I would be inclined to apply a discount for your youth in the region of 10 per cent.

(b)I would apply a discount of 20 per cent to reflect a guilty plea at this stage.

[19]That gives a rounded up sentence of two years and six months.

[20]   You may be entitled to further credits for other mitigating factors personal to you but these would be considered on the basis of further information available at sentencing.

[21]   So, Mr Harder, the sentence indication is therefore a maximum of two years and six months.

3      R v Hona [2014] NZHC 12.

[22]The sentencing indication will lapse on Monday 7 October 2024 at 10 am.

Anderson J

SCHEDULE A

Home Detention and Post-detention Special Conditions

1.Not to possess, consume or use any alcohol or drugs not prescribed to you.

2.Undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.

3.You are not to associate with or contact [the victim] without the prior written approval of a Probation Officer.

4.Not to communicate in any way or associate with known gang members, without the prior written approval of a Probation Officer.

5.You are not to associate with or contact your co-offenders without the prior written approval of a Probation Officer.