R v Harimate Te Heuheu

[2023] NZHC 506

[REDACTED VERSION]

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NAMES OF ALL PERSONS REFERRED TO IN PARAGRAPH [4], SAVE FOR KEATON DALE, ON THE BASIS THEY WOULD HAVE BEEN WITNESSES IN THE PROCEEDING AND ENTITLED TO NAME SUPPRESSION UNDER S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-209-151

[2023] NZHC 506

THE KING

v

KHANYE ERUERA HARIMATE TE HEUHEU

Hearing:

14 March 2023

Appearances:

D L Elsmore and C C White for Crown

P H B Hall KC and E Huda for Defendant

Judgment:

14 March 2023

SENTENCING NOTES OF DUNNINGHAM J

Introduction

[1]    Mr Harimate Te HeuHeu you are here for sentence today having pleaded guilty to one charge of manslaughter and two charges of wounding with intent to cause grievous bodily harm (GBH).

R v HARIMATE TE HEUHEU [2023] NZHC 506 [14 March 2023]

[2]    Before I discuss the sentence, I want to acknowledge the whānau and friends of the victims, and in particular, of Zion Purukamu who lost his life that night. I agree, no family should have to learn that a night of celebration for their son and brother turned into a night of tragedy and devastating loss. I am deeply conscious that nothing I can do in this Courtroom today will bring Zion back. However, I thank you for the love and courage that you have shown in preparing the victim impact statements which gave me a sense of the young man that Zion was and the ambitions he had.

The facts of the offending

[3]    The  events  which  gave  rise   to   these   charges   happened   on   Friday,  13 August 2021. A group of friends were at an Airbnb property in Medbury Terrace, Christchurch, to celebrate a young woman’s 17th birthday party.

[4]    At around 10 pm, you arrived at the party with two associates, [A] and Keaton Dale. Already at the party were a group of associates which included the deceased, Zion Purukamu, and the two other victims, [B] and [C]. Other members of the group included [D] and [E] and [F]. This group was known as the “Rowley Boys”, because they all came from the same street, Rowley Avenue.

[5]    At some point in the evening, [C] and Zion confronted you about kissing a girl whom they considered was too drunk. They told you to leave the property, but you refused. A physical altercation began between you and a number of the Rowley Boys. Those boys then chased you out on to the street where the fight continued. You were chased into a covered entranceway of another property in Medbury Terrace. Your two associates followed the confrontation and Keaton joined you in the entranceway.

[6]    A number of the Rowley boys, including two of the victims, Zion and [C], continued to fight with you. [C] demanded your Louis Vuitton side bag and he took  it from you. The Rowley Boys then retreated, and you and your two associates moved out into the driveway of the property you were on. At that point, a number of the Rowley boys returned, and the confrontation continued in the driveway.

[7]    At some stage during the altercation, you removed a knife from your clothing and stabbed Zion in the abdomen and in the back. Zion staggered away from you and across the road.

[8]    [C] continued in the altercation with you, not knowing that Zion had been stabbed. He rushed at you and you stabbed him once in the chest, piercing his lung. You began running from the driveway, along Medbury Terrace towards Clyde Road.

[C] initially chased you before he fell down on the road.

[9]    The third victim, [B], who had not been involved in that part of the altercation, was standing on Medbury Terrace. You stabbed him once in the chest as you ran past towards Clyde Road. He fell to the ground immediately. You then ran from the scene while  party  goers  rang  emergency  services  and  administered  first   aid   on  three seriously injured victims.

[10]   Despite medical assistance from the partygoers and paramedics, Zion was pronounced dead shortly after arriving in hospital. The cause of death was the wound to his aorta.

[11]   [C] was placed in intensive care due to the severity of his injuries. He sustained a single stab wound in the lower right chest which punctured his lung and required surgery.

[12]   The third victim, [B], was taken to hospital and placed in intensive care. He sustained a single stab wound to his chest which lacerated his spleen. However, he did not require surgery.

[13]   When you were spoken to by police, you claimed you acted in self-defence. You sustained the following injuries: a mild area of swelling behind your left ear, some mild swelling and bruising to your right hand and mild bruising to your left shin.

Purposes and principles of sentencing

[14]When sentencing you today I want to do the following things:

(a)I want to hold you accountable for what you have done;

(b)I want to promote in you a sense of responsibility and acknowledgment of that harm;

(c)I want to denounce the conduct which you were involved in; but

(d)I also want to assist in your rehabilitation and reintegration.

[15]   I also need to make sure that the sentence I impose takes account of the gravity of your offending, that is, how serious it is; and how culpable you are, that is, how responsible you are for what happened. I also need to make sure that the sentence I impose is in line with the sentences that have been imposed for similar offending. Finally, as your lawyer points out, I need to impose the least restrictive sentence that is appropriate in the circumstances.

[16]   The first thing I have to do is set a starting point. That will be set by reference to the most serious charge here, which is manslaughter. It will then be adjusted upwards to take account of the two other charges relating to the two other victims. I will then consider whether I should adjust the sentence down to take account of the other information I have received about you and your background, along with your guilty plea.

The starting point

[17]   In setting the starting point, Ms Elsmore for the Crown referred me to a case called R v Taueki, which is often used to help identify what might be aggravating features of violent offending.1 Using that case, she said, and I agree, the aggravating features are:

(a)the fact there was serious injury and extreme violence, in particular, that one of your victims died and the other two were placed in intensive care;

1      R v Taueki [2005] 3 NZLR 372 (CA).

(b)the use of a lethal weapon being the knife;2 and

(c)the number of victims involved.

[18]   Ms Elsmore said that would place you in band three of Taueki, and attract a point of nine to 14 years,3 and her submission was, it should be 12 years.

[19]   Ms Elsmore then acknowledges that a level of self-defence arises in the summary of facts and that does warrant an adjustment to the starting point. However, she submitted that that was limited because:

(a)this was a fight that was like a schoolyard brawl;

(b)they were young people who were attacking you, 14 to 17 years old, and the fighting involved just pushing, shoving, chasing, punching and kicking; and

(c)the level of violence you received was minor in comparison with the level of violence you inflicted with a knife.

[20]   Ms Elsmore also says that if you look at each stabbing separately, they do not all involve the same level of self-defence. She pointed to the fact that one of the wounds to Zion was a stab in the back and she said that that did not obviously fit a self-defence narrative. In relation to [B], you stabbed him as you were passing him in the street, so there was no obvious self-defence element to that.

[21]   Finally, Ms Elsmore pointed out that you had a number of opportunities to leave the party after you were first confronted by the victims and you chose not to.

[22]   At this point, it is worth noting that there are differing narratives about how you acquired the knife. I am sentencing you today, as you have heard, on the summary of facts. There is no evidence to support the suggestion that you believed the victims had knives, or that the knife you used was acquired from one of the victims. Equally

2      At [31](d).

3 At [34].

though, I am not sentencing on the basis that you took a knife to the party. It is simply unclear when or how you obtained the knife. So, this factor does not increase your culpability by showing premeditation, but it also does not reduce it by suggesting the victims themselves were armed, and you thought they were.

[23]   Ms Elsmore pointed me in her submissions to a number of cases which she says involve similar facts as they involve manslaughter by stabbing where there was an element of self-defence. The starting points in those cases range from seven to nine years.4 Having regard to those cases, the Crown submits that a starting point of eight years is appropriate for the single count of manslaughter, but should be uplifted by four years to reflect the two other charges on a totality basis.

[24]   Your lawyer, Mr Hall, accepts that the aggravating features of the offending was the harm done and the fact there were multiple victims, along with the fact you used a knife. However, he points out the use of the knife was not premeditated. He also points out that you did not react until you were punched and then chased into the covered entranceway of the neighbouring property and had your bag taken off you, and this is what prompted the force that you used.

[25]   The case of Taueki, confirms that where someone has been provoked or where they have acted out of self-defence, this may reduce the seriousness of the offending.5

[26]   In terms of cases, your lawyer pointed to a case where a starting point of     11 years’ imprisonment was imposed where there were three charges, being manslaughter, wounding with intent to cause GBH and attempting to wound with intent to cause GBH.6 However, he points out in that case, the knife was brought to the altercation. He also refers to the case of R v Manukau, a case that was referred to by the Crown, where the principal offender was found guilty of manslaughter and wounding with intent to cause GBH, and he says that is more comparable. There, eight to nine years was considered a proper starting point.7 However, again, the

4      R v Smith [2014] NZHC 2091; R v Pene [2021] NZHC 3327; Hohua v R [2022] NZCA 550; R v Eastham [2013] NZHC 2792; and R v Manukau HC Auckland T025176, 6 May 2004.

5      R v Taueki, above n 1, at [32].

6      R v Pikaahu [2022] NZHC 2383.

7      R v Manukau, above n 4; see also R v Manukau CA204/04, 15 November 2004.

defendant brought a knife to the scene. Your lawyer, suggests that with the additional victim, a starting point of 10 years would be appropriate before taking into account the elements of provocation and excessive self-defence. Taking them into account, he suggested that eight years was in the range.

Discussion

[27]   I begin by deciding what the appropriate starting point is, primarily by looking at similar cases. In R v Smith I took an eight-year starting point for a manslaughter charge where there was some level of self-defence, but that was a more serious case than here because the victim was stabbed three times in the back.8 There was also an element of pre-meditation in that case because the defendant brought the knife to the attack and told his girlfriend that he was going to fight. Furthermore, in that case, there were no acts of violence by the victim, only threats. In my view, therefore, R v Smith is a more serious case than here.

[28]   There are a number of cases which are similar in the sense that they involve young offenders reacting in excessive self-defence with a knife they have either brought to the offending or found in their situation. In R v Pene, R v Edwardson, and R v McKenzie the starting point used in all those cases was seven years’ imprisonment.9 In Hohua v R, there was similar offending with an older offender where a starting point of seven years and three months’ was taken, although the element of self-defence was somewhat stronger in that case.10 However, I also note that in all those cases, except McKenzie, there was only one stab wound and in McKenzie, the stab wounds were to the abdomen and chest, whereas here, one was from behind which is a position where the victim is unlikely to be able to defend himself. So, these elements may mean that this case is a little more serious than those where seven years was the starting point. Nevertheless, given the element of self-defence that arises here, if I was sentencing for just the single manslaughter charge, I would adopt a starting point of seven years’ imprisonment. For the two additional charges I consider an appropriate uplift, having regard to the principle of totality is three years, particularly when I considered that one

8      R v Smith, above n 4.

9      R v Pene, above n 4; R v Edwardson HC Rotorua CRI-2002-069-1101, 27 April 2007; and R v McKenzie [2019] NZHC 2976.

10     Hohua v R, above n 4.

of these attacks did not have any direct self-defence element. That gives a starting point of 10 years.

Discounts

[29]   In terms of discounts, Ms Elsmore accepted a discount for youth is appropriate as you were only 16 at the time of the offending. She points to cases where a discount of 10 to 20 per cent was allowed.11 She also accepts there should be a 15 per cent discount for your guilty plea, noting your plea was entered after the reduction of the murder charge. However, Ms Elsmore says you are not entitled to a separate discount for remorse as you have not shown an understanding of the wrongfulness of your conduct, nor have you done anything specific to show your acceptance of responsibility for that conduct and its effect on the victims.

[30]   Your lawyer agrees there should be a discount for youth. The Courts repeatedly have said that shorter sentences should be imposed on young people because their cognitive ability is not the same as adults. They are more likely to engage in risky behaviour and they are more susceptible to peer influence and impulsivity. Young people are also more likely to be able to be rehabilitated than adults.12 By reference to a range of cases, he said that a discount of 20 per cent is appropriate.13

[31]   Your lawyer also says there should be a discount for your background as described in the s 27 report. Those factors include the lack of contact with your father during your formative years, the impact on you on having a stepfather and half-siblings joining the family, your influence by the local Black Power gang which you began prospecting for, and your use of methamphetamine.

[32]   Finally, in respect of your guilty plea, your lawyer submits a 20 per cent is appropriate, noting that you pleaded guilty without hesitation once manslaughter was offered as an alternative to murder.

11 R v Kokiri [2019] NZHC 501 at [31] citing Palmer v R [2016] NZCA 541, R v Tarawa [2018] NZHC 3205, R v Feleti [2019] NZHC 94 and Wharerau v R [2015] NZCA 299; and R v Williams [2022] NZHC 2206.

12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[79].

13 Taki v R [2022] NZHC 1801; and Dickey v R [2023] NZCA 2.

Discussion

[33]   I start by acknowledging that there must be a substantial discount for your youth for the reasons which were explained so clearly in your lawyer’s submissions. You were only 16 when these events happened and, the impulsivity you showed that evening is consistent with the research which shows that young people are less able to consider the impact of their behaviour and consider alternative courses of action.

[34]   In your case, I consider that is exacerbated by the information I have from the report of Ms Leanne Mathews, a neuropsychologist, as well as by  the s  27 report Ms Tara Oakley prepared. That neuropsychological report confirms that you have cognitive difficulties and you are described as being impulsive and not good at thinking ahead. The s 27 report referred to a diagnosis of ADHD. While that is passed on second hand by the report writer, I consider that diagnosis is consistent with the difficulties that Ms Mathews identified you as having, such as being easily distracted and having difficulty paying attention. It is not clear what the causes of those difficulties are, or whether your use of drugs has increased it, but it does mean that you are functioning at less than your chronological age and this supports a material discount for youth. So, I would discount the sentence by 20 per cent for your youth.

[35]   It is also clear there should be a discount for your guilty plea. I accept it should not be a 25 per cent discount. You did not plead guilty to the wounding with intent charges at the first possible opportunity, and in respect of the manslaughter charge, I accept Ms Elsmore’s submission that it is not always necessary to give a full credit when there has been a significant benefit through in the reduction of the charge. I consider a discount of 20 per cent fairly reflects the extent to which you have taken responsibility for your offending.

[36]   Your lawyer also seeks a discount for relevant cultural and background factors which are discussed in the s 27 report. That report is very full, but it paints a mixed picture. You have suffered disconnection from Te Ao Māori and this was exacerbated by you leaving New Zealand to live in Australia for a short period of time. As the report writer says, you were geographically isolated from your whānau. Your father

was absent from your life and then your paternal grandfather died which meant you were deprived of the rich ancestry of your paternal whakapapa.

[37]   However, it is clear you were provided a relatively healthy environment in which to grow. All your basic needs were met, and your mother and grandmother worked tirelessly to give you the love and support you needed. As you said to the s 27 report writer, any physical discipline you received on occasions for your behaviour was “fair enough stuff really”, and all in all, you could not really fault the way your mother and stepfather raised you. That said, it is clear that the arrival of half-siblings was a huge adjustment for you, and the source of much pain and anger. Despite all the efforts of your mother, in particular, to steer you on the right path and to reach out to social support agencies, you turned to drugs and alcohol, and became aligned with the Black Power gang, although that you had severed that connection by the time you offended.

[38]   So, I accept there were factors in your upbringing that were negative, and in a general sense, might be said to have caused your anger and rebelliousness. In my view, a discount of five per cent is sufficient to reflect those factors. With those discounts your sentence is reduced to five years six months.

[39]   I do not consider a further discount for remorse is appropriate. While the s 27 report writer thought you appeared remorseful and said you were keen to participate in restorative justice, there really is no tangible evidence of this. In addition, the pre-sentence report writer said you did not seem to grasp the severity of your offending, nor what impact it had on your family and the victims and their families. This may be because you are not someone who has the tools to express your feelings but, without anything more, I cannot be satisfied that you have shown true remorse.

[40]   It seems, too, you have made no real commitment to change your offending behaviour. Since you were charged you began behaving in a way which meant it was necessary to remove you from Te Puna Wai o Tuhinapo, the youth justice facility, to an adult prison, and that really concerns me that there is no suggestion that you have made a decision to turn your life around.

[41]With all those comments, Mr Harimate Te HeuHeu would you please stand.

[42]   On the charge of manslaughter you are sentenced to five years six months’ imprisonment.

[43]   On the charge of wounding [C] with intent to cause GBH you are sentenced to two years to be served concurrently.

[44]   On the charge of wounding [B] with intent to cause GBH you are sentenced to three years to be served concurrently.

[45]Stand down.

Solicitors:

Crown Law, Christchurch

Copy To:

P H B Hall KC, Barrister, Christchurch E Huda, Barrister, Christchurch