R v Harrison

[2014] NZHC 2705

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-096-2316 [2014] NZHC 2705

THE QUEEN

v

SHANE PIERRE HARRISON DILLIN PAKAI

Hearing:	31 October 2014
Counsel:	G J Burston and J A Eng for the Crown S J Gill for Harrison K R Smith and C Tenet for Pakai
Sentence:	31 October 2014

SENTENCING NOTES OF MALLON J

Introduction

[1]      Normally I would require you both to stand at this point.  However there is quite a bit to go through, particularly in relation to you Mr Harrison because of the three strikes legislation.  You can therefore remain seated for now but you will be asked to stand when I formally pass sentence on you. I am going to start with you Mr Pakai and because of that I would actually like you two to switch places in the dock

please. Thank you very much.

R v HARRISON [2014] NZHC 2705 [31 October 2014]

Mr Pakai

Convictions

[2]      Mr Pakai, you appear for sentencing on your convictions for murder1  and reckless discharge of a firearm2 following your jury trial before me last month.  You are also to be sentenced on your convictions for reckless discharge of a firearm3 and unlawful possession of a firearm4 following your guilty pleas entered before trial.

[3]      Because of your conviction for murder you were given a first strike warning when I entered the conviction at the conclusion of the trial.  You will be given a document setting out that warning in writing.

Circumstances of offending

[4]      The events which gave rise to your offending took place on the evening of

22 August 2013.  You and Mr Harrison are members of the Rogues chapter of the Mongrel Mob. The two of you decided to pay a visit on [Mr EE], who was a member of [a different chapter of the Mongrel Mob]. It is apparent from the evidence that [Mr EE] was involved in methamphetamine.   It appears that your intended visit was because of that.

[5]      When the two of you arrived at his flat he was not home.  [Mr EE] had been smoking methamphetamine and had gone somewhere to “reload”.5     His partner, [Ms MN], was alone in their flat.  You entered their flat and took [Ms MN’s] cell phone, a small amount of cannabis that was lying around, a packet of cigarettes and a pipe for smoking methamphetamine.   [Mr EE] also thought you took some gang regalia although the evidence as to whether you in fact did so is not so clear.  After taking these various items you left.

[6]      [Ms MN] was upset by this intrusion.  After several attempts she managed to make contact with [Mr EE] and told him what had happened. He was very angry. He

1      Crimes Act 1961, ss 167 and 66.

2      Arms Act 1983, s 53(3); Crimes Act 1961, s 66.

3      Crimes Act 1961, ss 198(2) and 66.

4      Arms Act 1983, s 45(1); Crimes Act 1961, s 66.

5      That is, obtain more methamphetamine.

made contact with you two via the stolen cell phone and demanded that you return with it.  He made a number of calls checking that the two of you were on your way. He also arranged for a number of associates to gather and await your return.  They were expecting a confrontation.  They were armed with weapons of various kinds:  a cricket bat, a Samurai sword, a knife, and a machete.

[7]      You and Mr Harrison agreed to return to the flat. You did so at speed. The car in which you returned was estimated to be travelling at up to 159 km/h. You had with you a pistol, in the form of a modified rifle, and a good deal of ammunition.  When a bread van and a car slowed your journey, you shot twice at the rear of the bread van. Your guilty plea to the reckless discharge of a firearm relates to this incident.

[8]      Once you arrived at the flats the car was parked in one of the car park areas at the flats, car park 1, and you and Mr Harrison proceeded to the adjacent car park area, car park 2, where you saw the assembled group.  Mr Harrison returned the phone. Some words were exchanged and Mr Harrison was struck heavily by one of them. You responded by firing the pistol in the direction of the group. Six shots were fired in and around car park 2. The group dispersed.

[9]      You and Mr Harrison then made your way back to the car in car park 1. Believing you to be out of ammunition [Mr EE] was slashing the tyres of the car with a knife. The associates also made their way to the car. Alonsio Matalasi, who was not a member of the Mongrel Mob but who was friends with the group, was amongst them. He had a Samurai sword.  Someone else had a machete.  The weapons were used to inflict considerable damage to the car. You were stabbed in the shoulder and leg.  Mr Harrison was struck behind his ear and cut across his hand. You shot Mr Matalasi. He died soon after, not far from the scene, after trying to call 111.

[10]     You and Mr Harrison took off in the severely damaged car.  Mr Harrison was driving. He stopped at a house in Newlands where he asked the occupant to help with his injuries.  You endeavoured to hide the firearm and ammunition at the house.  The occupant called 111. The two of you were apprehended not long after. Mr Harrison’s injuries were assessed by the ambulance officers as “serious with a possible threat to life”. Your injuries were relatively minor and were not life threatening.

[11]     Your defence at trial was the shots fired in car park 1 and 2 were warning shots to help you and Mr Harrison get away from the scene in which you found yourselves and that the fatal shot was a warning shot gone wrong rather than an intentional killing. Further, your defence was that all the shots were fired in self-defence or defence of Mr Harrison.  The jury rejected this.  They must have been sure that there were lesser alternatives available to you: that is, they were sure that you were not acting defensively or that, if you were, the force you used was excessive.   In the circumstances of this  case, which  of those does not matter for the purposes of sentencing you.  In my view it is the overall context in which the shooting occurred, rather than a resolution of the exact events at the time, that sets the culpability in this case.

Personal circumstances

[12]     Mr Pakai, you are 20 years old. You were 18 at the time of the offending. You have a number of convictions in the District Court although, on the scale of things, for relatively minor matters, and two appearances in the Youth Court. You were exposed to violence in your home from a young age. You left school at a young age and have never held any stable employment.  You are immersed in the gang life.   The pre- sentence report writer considers that you showed no victim empathy or genuine remorse.  She assesses you as being at a high likelihood of reoffending and as posing a high risk of harm to others.

Victim impact statement

[13]     We  have  heard  from  Mr  Matalasi’s  father,  Mr  Matalasi  Senior.    It  is  a remarkable statement.  I do not need to repeat all that he has so ably expressed.  The life of a young man, Mr Matalasi Senior’s “baby boy”, is lost.  It was Alonsio’s son’s first birthday when Alonsio [Sio] was killed.  Mr Matalasi Senior has described the immense and overwhelming pain of the family’s loss and the other consequences for him and his family and Sio’s two little children from your actions.  Despite that, he forgives you.  He does not want punishment, he would like you to be free where you can learn to live with compassion towards others.  I acknowledge his wishes but it is not open to me to give effect to them.

Life imprisonment

[14]     In the case of murder the sentence is life imprisonment unless that sentence is manifestly unjust.6   Counsel do not suggest that it would be manifestly unjust.  There is no legal basis for any other view.   Accordingly you are sentenced to life imprisonment.

Minimum period of imprisonment

[15]     I am required to set a minimum period of imprisonment.  That is not to be equated with the sentence.  The sentence is life.  The minimum non-parole period is the period of imprisonment that you must serve before you are eligible to apply for parole. Eligibility to apply for parole does not mean you will be released from prison.

[16]     It is not suggested that this is a case where the minimum period should be at least 17 years.7  This means that the minimum period must be 10 years or such further period as is necessary for accountability, denunciation, deterrence and protection of the community.8

[17]     Counsel for the Crown submits that 13 years should be set as the minimum period. This is on the basis that no allowance be made for youth. Your counsel submits a minimum period of 10 years is appropriate because of your age and because the fatal shot was discharged when you and Mr Harrison were under attack and making your escape.

[18]     In my view the key factors are these. You and Mr Harrison started this violent gang confrontation with your intrusion into [Ms MN’s] home earlier in the evening. You chose to return, in response to [Mr EE’s] demands that you do so.  You were expecting a confrontation.  You took a modified rifle and dozens of cartridges with you.  Your actions on the highway in shooting at the bread van show that you were pumped up and looking to use the firearm.  The ensuing confrontation with [Mr EE]

and his associates was significantly violent.  It put others in the area at risk of harm

6      Sentencing Act 2002, s 102.

7      Section 104.

8      Section 103.

and frightened many of them.  Although you were under attack, you were not acting in self-defence or defence of Mr Harrison, as the jury found, when you fired the shot. Looked at overall I consider that, apart from the issue of youth, the minimum period should be 13 years.9

[19]     I agree with counsel that your previous convictions do not warrant an uplift. Young offenders can be given a discount from what would ordinarily be imposed.10   I have thought about whether these convictions, together with your lack of remorse and empathy and other comments made in the pre-sentence report, should disqualify you from a discount for youth as the Crown submits.  In the end I have decided that they should not.   These matters may also be a product of your age, a misguided and immature show of bravado by someone immersed in the gang culture.  I think it is better to leave it to the parole board to see whether that is so when you have the opportunity to mature.  I have therefore decided to discount the minimum period by

nine months.11

9      In setting this period I have considered the following cases: R v Wallace HC Wellington CRI-

2007-083-1608, 20 February 2009 (15 year minimum period imposed for the murder of a small child in a gang conflict, but not in the context of an attack); R v Williams and Olson [2005] 2

NZLR 506 (CA) (15 year minimum period upheld for a pre-meditated murder of a friend using two different weapons); R v Afamasaga [2014] NZHC 2142 (14 year minimum period imposed for a pre-meditated murder in an inter-gang conflict in the context of an attack); R v Moala HC Auckland CRI-2006-092-461, 12 December 2007 (13 year minimum period imposed for murder in an inter-gang conflict where there was planned retaliation and a shot fired to the face); and R v

Smail [2007] 1 NZLR 411 (CA) (13 year minimum period imposed for murder of a tetraplegic

friend for whom the offender had been the caregiver); R v Neketai [2013] NZHC 2711 (13 year minimum period for murder where the offender sought out the victim and inflicted a punch and a kick; the sentence was subject to an appeal, but a manslaughter conviction was substituted and the case was returned to the High Court for sentencing); R v Karaka HC Wellington CRI-2007-091-
4694, 15 May 2009 (12 year minimum period for murder of a member of the pub lic with a knife, not in the context of an attack, where the offender mistakenly assumed the victim was a gang member); R v Walsh (2005) 21 CRNZ 946 (CA) (11 and a half year minimum period for pre- meditated murder of an associate in a non-gang context with a knife, where a guilty plea was entered); R v Mills HC Palmerston North CRI-2009-054-3808, 16 June 2010 (11 year minimum period imposed for murder over a failed drugs transaction, where the offender invited the victim

over and shot him after an argument); and R v McNaughton [2012] NZHC 815 (10 year minimum period imposed for murder in a non-gang related context where a firearm was taken for defensive purposes).

10     See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]-[77], where the Court of Appeal held that youth can be a mitigating factor in determining the appropriate penalty. This is because of age-related neurological differences between young people and adults, the effect of

imprisonment on young people, and their greater capacity for rehabilitation.   Examples of

discounts for youth in the context of murder are R v Herewini [2013] NZHC 2570 (a discrete discount of two years) and R v Churchis [2014] NZHC 2257 (a discount of one year and six months for the combination of remorse and youth).

11     See  R  v  Raroa  [2012] NZHC 1281, where in the context of violent offending in a gang confrontation a discount was given for the offender's youth despite the absence of a guilty plea or

demonstrated remorse.

[20]     I am going to ask you now to stand while I formally pass sentence.  What all of this means is that on the charge of murder you are sentenced to life imprisonment. The minimum period of imprisonment is 12 years and three months.

Other sentences

[21]     For the offences other then murder, broadly in line with counsel’s submissions

I have concluded that:

(a)      on the charge of discharging a firearm with reckless disregard for the safety of others on State Highway 2 I consider the starting point should be two and a half years with a 10 per cent discount for the guilty plea, which means a sentence of 27 months imprisonment (concurrent);12

(b)on the charge of discharging a firearm with reckless disregard for the safety of others at the Jackson Street flats I impose a sentence of 24 months imprisonment (concurrent);

(c)      on the charge of unlawful possession of a firearm you are convicted and discharged.

[22]     You are to stand down now please.

Mr Harrison

Convictions

[23]     Mr Harrison, you are to be sentenced on your convictions for murder13  and reckless discharge of a firearm14 in relation to the events I have already described and on which you were tried with Mr Pakai. Mr Harrison, it is your choice at the moment,

you can sit down if you like because I do have a bit to go through.

12     The Crown submitted that an end sentence of two and a half years to three years would be appropriate.  Defence counsel did not consider this inappropriate.  The Crown referred to R v Gathergood [2010] NZCA 350 and R v Templeton CA460/05, 6 July 2006. However in my view the offending was less serious than both of those cases because there was a lesser danger involved.

13     Crimes Act 1961, ss 167 and 66.

14     Arms Act 1983, s 53(3); Crimes Act 1961, s 66.

Personal circumstances

[24]     You are 44 years old.  Prior to these events you were the caregiver for your 11 year old son.  You were involved in his school and other activities and, until these events, made some progress towards being a better father figure. You have a number of other children, two of whom have passed away, and one grandchild.  You have been a patched member of the Mongrel Mob for 20 years.  You have sustained multiple injuries from what you describe as “gang wars”, some of these have been serious. You have a long history of alcohol and drug use.

[25]     You have a lengthy list of previous convictions beginning in 1984 in the Youth Court. A good number of these are for relatively minor matters.  Some, however, are not.  Of some relevance are:

(a)      your conviction for manslaughter in 1987 when you were 17 years old, and were part of a group who brutally assaulted the victim as part of a gang decision to discipline him;

(b)your conviction for wounding with intent to cause grievous bodily harm in November 2005 in a nasty attack on an ex partner which left her unconscious and in need of hospital treatment for four days;

(c)       assaults in 1998, 2001, 2007 and 2011;

(d)      possession of firearms or ammunition in 1994 and 2005; and

(e)       an indecent assault on a female police officer in 2011.

[26]     In light of that history the pre-sentence probation officer considers that you have a high risk of reoffending and to  reduce that risk  you need to  engage in meaningful interventions available to you in prison. The probation officer reports that you are making plans to move towards a more pro-social life, including attending programmes and studying while you are in prison.

Warnings

[27]     At the conclusion of the trial I was advised that you were to be given a first warning.  That was given to you.  That turned out to be an error because you had already received a first warning. That warning was given for the 2011 indecent assault.

Effect of second stage offence of murder

[28]     Because you have been convicted of murder after receiving a first warning I am required to sentence you to life imprisonment. I am also required to order that you serve that sentence without parole.15     That is the starting point.   Parliament has, however, accepted that in some instances that may be unfair.  The sentencing Judge retains a discretion. The threshold for the exercise of that discretion has been set very high.16    It can be exercised only if I consider that, given the circumstances of the offence and the offender, it would be manifestly unjust to order that you serve a life sentence without parole.17

Is a life sentence without parole manifestly unjust?18

[29]     When I consider these circumstances19 in relation to you one point in particular stands out.  That is that your qualifying offence was a relatively minor one.20   Of the

15     Sentencing Act 2002, s 86E(1) and (2).

16     Sentencing Act 2002, s 86E(2).

17     There is no definition of “manifestly unjust” in the legislation for the purposes of s 86E(2)(b).

This is the first occasion where it has arisen.  The same expression is found in s 102.  In that context it has been held that the conclusion is to be made on the basis of the circumstances of the offence and the offender; it is an overall assessment; the injustice must be clear and to be considered  against  the  sentencing purposes and  principles; and  is  likely to  be  reached  in exceptional  cases  only,  as  the  legislation  contains  a  strong  presumption in  favour  of  life imprisonment for murder: R v Rapira [2003] 3 NZLR 794 (CA). The expression is also found in s 104. In that context a similar conclusion was reached as to how the test is to be assessed. However, recognising the different legislative purpose of s 14, it was said that the cases which met this test need not be rare: R v Williams [2005] 2 NZLR 506 (CA). I take guidance from these cases and apply this approach but in the context of the different legislative purpose to which s 86E(2)(b) is aimed. As to that I refer to the Explanatory Note to the Sentencing and Parole Reform Bill (Sentencing and Parole Reform Bill 2009 (17-1)) and the Commentary on that Bill as reported from the Law and Order Committee (Sentencing and Parole Reform Bill 2009 (17-2)). See also Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SA86A.2].

18     Section 86E(3) requires me to give written reasons.  These typed sentencing remarks, complete with my footnotes, constitute my reasons.

19     There is nothing about the offence itself which stands out one way or the other.  It is neither the least nor worst offending of its kind.

20     Sentencing Act 2002, s 86A. A first warning is to be given for a “serious violent offence” which is defined to include a range of offences with maximum penalties ranging from seven years to life

qualifying offences it attracts the lowest of the maximum available penalties.21   And the incident itself is at the lower end of that type of offending as the sentence you were given indicates.  It involved you pinching the bottom of a police officer and brushing your hand across her groin and her thighs, while she was taking the details of a group of Mongrel Mob members assembled at a carpark.22

[30]     If this sort of offending in  and of itself could trigger a sentence of life imprisonment without parole when, but for that offending, you would otherwise be eligible to apply for parole after a number of years, that would be, in my view, an entirely disproportionate response.23   It would be manifestly unjust and is the kind of unfair case that Parliament has recognised can arise in providing the Judge with the discretion.

[31]     The question then is whether there is something else in your circumstances to alter that conclusion.   That brings me to your previous convictions for violence, including your conviction for manslaughter.24  The Crown submits that they display a propensity for violence which should be given significant weight in  the overall analysis in light of the purpose of the legislation.

[32]     In my view it is significant that in that history only two of the offences would now qualify as a “serious violent offence” under the legislation.  Because they pre- dated the three strikes legislation, however, you did not receive a first strike warning for either of those offences.  The legislation is premised partly on the idea that the warnings will provide general and specific deterrence if people are aware of the

consequences of their actions.25    When you committed these offences you did not

imprisonment.

21     Section 135; seven years.

22     In the context in which it occurred, it seems to have intended to be offensive to the officer but seemingly not motivated by sexual gratification.  The bringing of the charge and the sentence

passed were a stern response to what occurred.

23     As is recognised in the Explanatory Note at p 6:  “These policies also have some risks for public confidence in the criminal justice system due to the potential for disproportionate outcomes”.

24     I note that all of these offences pre-dated the three strikes legislation. Had I formed the view that the number and nature of these offences meant that Mr Harrison could not meet the high

“manifestly unjust” test, I would have wished to hear submissions on whether considering these offences involved improper retrospectivity.

25     See, for example, the Explanatory Note at p 1 stating that “The Bill is specifically targeted at offenders who show contempt for the court system and the safety of others by continuing to offend despite long prison sentences  and  j ud icial  war ni ng s  ” (emphasis added). And at p 7, that “the life

without parole for the worst murders policy” is intended to (amongst other things) “encourage

know of the consequences that are now being considered.  It is also relevant, in my view, that, of the two offences, the most serious is the manslaughter conviction and that occurred nearly thirty years ago.  The other offence is more recent although it occurred in a different context and was of lesser seriousness.

[33]     I note also your age and that there are signs that you do wish to be more pro- social as noted in the pre-sentence report and as indicated by the progress you have begun to make with your son.26   There is a benefit to society if you can do so.  If you are eligible for parole at some stage you may be at an age where reoffending risks may have declined.  I also note Mr Matalasi Senior’s forgiveness of you and his wish that you be free.27

[34]     Having considered all of these matters it is my conclusion that an order to serve a life sentence without parole would be manifestly unjust. I therefore need to consider the minimum period of imprisonment before you will be eligible for parole.28

Minimum period of imprisonment

[35]     I assess your culpability overall as broadly comparable to Mr Pakai. You were not the shooter but you were the senior patched member.  You went with Mr Pakai knowing he had the pistol and the ammunition.  The jury’s verdict on the shooting in car park 2, in the lead up to the fatal shot in car park 1, means that you either told or encouraged Mr Pakai to fire the shots. In relation to the fatal shot you told or otherwise encouraged Mr Pakai to shoot or you formed  a common intention with him to prosecute an unlawful purpose, knowing that a murder was the probable consequence. Which of these alternatives does not alter my assessment of your culpability.

[36]     Your previous history is aggravating.  Overall, however, I consider the only reason to differentiate between you and Mr Pakai is the allowance I have made for his

youth, and that a minimum period of 13 years meets the purposes of accountability,

offenders to understand the consequences of repeat offending through increased certainty about these consequences”.

26     This is a relevant consideration given that the legislation is in part about protection of the community.

27     I note that in that context that the legislation is also partly about improving victim confidence in the criminal justice system.

28     Sentencing Act 2002, s 86E(4)(b).

denunciation, deterrence and protection of the community.  The latter of course will be able to be assessed when you are eligible to apply for parole.

[37]     So Mr Harrison, please stand up.  What all this means is that on the charge of murder you are sentenced to life imprisonment. The minimum period of imprisonment is 13 years.

Reckless discharge

[38]     On the charge of discharging a firearm in reckless disregard for the safety of others, in line with the submissions, the sentence is 18 months imprisonment (concurrent).

Final warning

[39]     I am required to give you a final warning and I am going to do that now.  If you are convicted of any serious violent offence except murder or manslaughter committed after you receive this final warning, you will either be:

(a)      sentenced the maximum term of imprisonment for that offence.  You will serve that sentence without parole unless that would be manifestly unjust; or

(b)sentenced to preventive detention, you will serve a minimum term of imprisonment of at least the length of the maximum term of imprisonment for the offence unless that would be manifestly unjust. In that case the Judge must specify the minimum term of imprisonment that you will serve.

[40]     If you are convicted of murder committed after you receive the final warning, you will be sentenced to imprisonment for life, you must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison.

[41]     If serving the life sentence without parole would be manifestly unjust, the Judge must impose a minimum term of imprisonment of at least 20 years unless that would also be manifestly unjust.  In that case, the Judge must specify the minimum term of imprisonment that you will serve.

[42]     If you are convicted of manslaughter committed after you receive the final warning, you will be sentenced to imprisonment for life.  The Judge must impose a minimum term of imprisonment of at least 20 years unless that would be manifestly unjust.  In that case, the Judge must impose a minimum term of imprisonment of at least 10 years.

[43]     You will receive a copy in writing of this final warning.

[44]     Please stand down Mr Harrison.

Mallon J

Subsequent matters

[45]     An order for destruction of the firearm was sought and granted.

[46]   Leave to withdraw a charge of attempting to supply a class A drug (methamphetamine) (charge number 13096001395) is granted.  Given the sentence that has just been passed on Mr Harrison it is not in the public interest to proceed with the charge. The charge is accordingly dismissed.

[47]     I make an order cancelling the first strike warning given in error at the conclusion of the trial.

Mallon J