R v Hemopo

[2023] NZHC 1613

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-00936

[2023] NZHC 1613

THE KING

v

TAGO KEPA HEMOPO

Hearing:	14 December 2023
Counsel:	T Simmonds and K Karpik for Crown D Duffy for Defendant
Sentence:	14 December 2023

SENTENCING NOTES OF MUIR J

Solicitors:           Kayes Fletcher Walker, Auckland

R v HEMOPO [2023] NZHC 1613 [14 December 2023]

Introduction

[1]                 Mr Tago Hemopo, you are for sentence on two charges: conspiring to injure 22-year-old Rangiwhero Ngaronoa with intent to injure him;1 and driving whilst disqualified (third or subsequent).2 In respect of the first charge, you were found guilty after a defended jury trial. In respect of the second, you pleaded guilty on 4 August 2023, the Friday before trial.

Background

[2]                 At the relevant time, you were the intimate partner of Ms Jimel Burns-Wong- Tung. An issue arose between Ms Burns-Wong-Tung and Mr Ngaronoa. She took offence at reported comments by him about a young relative’s possible sexualised behaviour towards a toddler within her wider orbit of whānau and friends.

[3]                 Ms Burns-Wong-Tung wanted Mr Ngaronoa brought to her for retribution. She engaged others to assist her  including  Mr  Ngaronoa’s  uncles,  Mr  Thomas  and Mr Rocky Ngapera; and her mother, Ms Kelly-Anne Burns. As trial Judge, I am satisfied based on the evidence before the jury, that Ms Burns-Wong-Tung discussed her plan with you and enlisted your support. Although the plan was probably in conception for approximately 24 hours prior to execution and the time at which you were first party to it cannot be established with accuracy, my sentencing proceeds on the basis that you were onboard with it no later than the latter part of the morning of 21 November 2021. In that context, I consider the evidence contained in Mr Robert Stevens’ police statement, dated 8 December 2021, to be reliable.3

[4]                 Shortly after midday on 21 November 2021, you drove Ms Burns-Wong-Tung in your family vehicle to a pre-arranged rendezvous in Myna Place, Weymouth. You

1      Crimes Act 1961, ss 189(2) and 310: maximum penalty of five years’ imprisonment.

2      Land Transport Act 1998, ss 5(1)(c) and 32(1)(a) and (4): maximum penalty of two years’ imprisonment or a fine not exceeding $6,000; and mandatory disqualification from holding or obtaining a driver license for one year or more.

3      The relevant paragraphs provide:

4Jimel came up with a plan to have the guy brought to us so that Jimel [could] ask him about what he said, and we were going to give him a hiding.

5I can’t remember if the plan was in person or whether it was discussed on the phone but Jimel was talking to the two Black Power members and Tago. I remember hearing Jimel talking to Tago about it.

were disqualified from driving at the time. You had with you brothers Ford and Robert Stevens as passengers. You arrived at 12.32 pm. Shortly thereafter, Ms Burns arrived in her vehicle. A minute later the Ngapera brothers did likewise with Mr Ngaronoa in the back seat of their SUV, effectively as their captive.

[5]                 CCTV from an adjacent property captured what occurred at Myna Place, including Ms Burns-Wong-Tung exiting your vehicle before the other vehicles arrived and searching for something in the boot. The Crown says that she recovered a knife and returned to the front passenger seat to await the arrival of the other vehicles. The Crown says that you were therefore aware that she would be using a knife in the subsequent assault on Mr Ngaronoa.

[6]                 I decline to sentence on that assumption. If a knife was recovered from the boot, it is possible that Ms Burns-Wong-Tung concealed it on her person in a way which did not come to your attention at that time. CCTV footage later in the day from a local laundromat confirms her ability to carry a knife discretely and I conclude it to be reasonably possible that you were not aware a knife would be used in the assault until you observed Ms Burns-Wong-Tung subsequently using it. I note that neither of the Stevens brothers saw a knife until Ms Burns-Wong-Tung commenced the assault on Mr Ngaronoa.

[7]                 On arrival at Myna Place, the Ngapera brothers parked their SUV in the entrance to a residential driveway. Ms Burns-Wong-Tung then exited your vehicle and gained entry to the rear seat of the SUV. She then began to attack Mr Ngaronoa with what one witness described as “piston-like” arm movements. In their police statements, the Stevens brothers reported seeing her with a large knife and hearing screaming from the rear of the vehicle. In Mr Robert Stevens’ words, “[t]here was heaps of blood, there was enough for someone to lose their life.” Mr Robert Stevens’ statement recorded both you and one of the Ngapera brothers telling Ms Burns-Wong- Tung, “that was enough”. I am prepared to accept, based on his earlier video interview, that this direction may have occurred at quite an early stage of the assault. However, I do not accept that it was before the assault actually started.

[8]                 When Ms Burns-Wong-Tung returned to your car, you exited Myna Place at speed and drove back to your home. Mr Robert Stevens reports you saying to him and his brother that nothing was to be said about what had happened.

[9]                 Meanwhile, the Ngapera brothers had sped from the scene with gravely injured Mr Ngaronoa in the back seat. One of the brothers rang 111 from the vehicle a little over a minute later. They proceeded immediately to an emergency clinic where attempts were made to stabilise Mr Ngaronoa. An ambulance arrived shortly afterwards and transported him to Middlemore Hospital. Mr Ngaronoa died approximately an hour and a half after the assault of acute blood loss. Two wounds were especially severe: a wound to his back which penetrated through the plural cavity and into the lung and a wound to the chest 13 cm deep. There were also a number of other wounds to his scalp, arm and foot, some of which were consistent with defensive injuries, others not.

[10]              In response to a supplementary question administered to the jury, it confirmed that the principal wounds to the back and chest (each of which I regard as a matter of law as having been substantial and operating causes of death based on the pathologist’s evidence) were inflicted by Ms Burns-Wong-Tung. She was found guilty of murder.

Approach to sentencing

[11]              My approach is orthodox. I will, having regard to the relevant purposes and principles of sentencing and comparable cases, set a starting point for the conspiracy charge which I regard as the lead offending. I will then consider what, if any, uplift is appropriate in respect of the driving whilst disqualified charge, with overall reference to totality principles. I will then consider what factors personal to you are appropriately taken into account to arrive at my final sentence.

[12]              In sentencing you, I must have regard to the principles and purposes of sentencing as set out in the Sentencing Act 2002. I consider the purposes most particularly engaged include holding you to account for your part in the harm done to the victim and to the community by your offending;4 promoting in you a sense of

4      Section 7(1)(a).

responsibility for and acknowledgement of that harm;5 denouncing the conduct in which you were involved;6 and deterring you and others from committing the same type of offending.7

[13]              In terms of relevant principles, I note that I must consider the gravity of your offending including your culpability8 and the seriousness of the offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences.9 I also note the need for consistency in sentences for similar offending.10

[14]              In that respect, I have carefully considered the cases referred to me by counsel. Regarding the conspiracy to injure charge, I am also particularly influenced by the sentences imposed on the Ngapera brothers who faced the same charge. For both, a starting point of two years and nine months’ imprisonment was adopted in respect of the conspiracy charge.11

[15]              Ultimately, the sentence I impose must be the least restrictive that is appropriate in the circumstances of your case.12

The starting point

[16]              In respect of the offence of injuring with intent to injure, the Court of Appeal in Nuku v R13 has established three sentencing bands:

(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

5      Section 7(1)(b).

6      Section 7(1)(e).

7      Section 7(1)(f).

8      Section 8(a).

9      Section 8(b).

10     Section 8(e).

11     R v Ngapera [2023] NZHC 2931 at [15].

12     Section 8(g).

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

(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed in   R v Taueki14 are present.

(c)Band three: a starting point of two years up to the statutory maximum will apply where three or more of the aggravating factors in Taueki are present and the combination of those factors is particularly serious.

[17]              In terms of sentencing for a conspiracy to commit violent offending, the Court of Appeal has indicated that the extent to which an offender has participated and persisted in a conspiracy is a primary consideration.15

Submissions

The Crown

[18]              Mr Simmonds, for the Crown, submits that a starting point in the vicinity of three years’ imprisonment is appropriate. He says that the following aggravating factors were present:

(a)Completion of the conspiracy: in the sense that Mr Ngaronoa was attacked and ultimately murdered by Ms Burns-Wong-Tung.

(b)Planning and premeditation: while inherent in the charge, the conspiracy involved you driving Ms Burns-Wong-Tung to Myna Place to confront Mr Ngaronoa.

(c)Multiple defendants: while acknowledging it as again inherent in the charge, Mr Simmonds notes that multiple co-defendants conspired to carry out the offending.

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

15     R v Henry [1997] 1 NZLR 150 (CA).

(d)Vigilantism: the conspiracy was created to punish Mr Ngaronoa for allegedly spreading misinformation about a relative of Ms Burns- Wong-Tung.

(e)Harm to the victim: Mr Ngaronoa was stabbed eight times and died as a result of the conspiracy to injure him.

[19]              Mr Simmonds says that the starting point should be uplifted by six months (taking into account totality considerations) on account of the driving charge and a further three months on account of your previous convictions. He submits that you are not entitled to any discounts, apart possibly from a nominal discount to reflect the guilty plea on the driving charge, albeit that in oral submissions today he has acknowledged a further discount of possibly up to 10 per cent for your personal circumstances. Mr Simmonds therefore submits that I should sentence you to something in the order of three years’ imprisonment, perhaps a little more.

Defence counsel

[20]              Your counsel, Mr Dufty, submits that the starting point should be two years’ imprisonment. He says that your offending was less serious than that of the Ngapera brothers and that although you anticipated the deceased would be vulnerable (confined to a vehicle and kept there by others) and subjected to a moderate level of violence, you were not expecting grievous or significant harm and meaningfully attempted to limit the assault by Ms Burns-Wong-Tung. Mr Dufty says that it cannot be inferred you knew a knife would be involved. As indicated, I agree.

[21]              Mr Dufty further submits that the uplift for the driving offence be limited to three months, having regard to comparable cases,16 your guilty plea and totality considerations. He says that no uplift is appropriate for previous offending.

16     In particular, Muhinda v New Zealand Police [2015] NZHC 2024.

[22]              He submits that from a combined sentence of two years and three months, you should be allowed a discount of 15 per cent (four months) on account of the factors identified in your s 27 report, making for a total end sentence in the order of one year and 11 months’ imprisonment.

Setting the starting point

[23]              I have referenced the starting point adopted in respect of Mr Ngaronoa’s uncles, Mr Thomas and Rocky Ngapera. In my view, their role in the conspiracy was more serious than yours, and by a significant measure. They took Mr Ngaronoa under their control, probably the previous day. He was effectively their captive. Their offending involved a very substantial breach  of  trust  given  their  relationship to Mr Ngaronoa. Unlike you, both were out of their vehicle at various times during the assault and did not physically intervene to stop it.

[24]              I  accept  that  your  case  has  some  similarities  with  the  offending   in     R v Donaldson,17 where the defendant assisted her ex-husband to gain entry to a home shared with a flatmate who the ex-husband said was “going to get a fucking lesson that she would never forget”. Ms Donaldson arranged for the victim to open the door for her ex-husband who then grabbed the victim by the throat, pushed her against a wall and stabbed her fourteen times. She survived that assault.

[25]              Ms Donaldson was sentenced on the basis that she knew the victim was going to be beaten severely and in retribution for a grievance but that she did not know what that beating would involve. A starting point of three years’ imprisonment was adopted.

[26]              Significantly, however, Ms Donaldson was sentenced as a party on the charge of injuring with intent to injure and not as a conspirator. In facilitating entry to the home when that would not otherwise have occurred, I also consider her offending more serious than your own, to the extent your only proven role in implementation of the conspiracy was in driving Ms Burns-Wong-Tung to Myna Place. Moreover, unlike you, Ms Donaldson made no attempt to prevent the assault from continuing. She simply retreated to her bedroom.

17     R v Donaldson [2016] NZHC 1718.

[27]              As indicated, although you were part of the plan to have Mr Ngaronoa delivered up to be punished by way of bodily injury and agreed to drive Ms Burns- Wong-Tung to the pre-arranged rendezvous for that purpose, in fixing the starting point I proceed on the basis that your understanding was he was going to receive a beating or a “hiding” but not that he was going to be violently assaulted with a large kitchen knife, resulting in his death.

[28]              In my view, although the elements of vigilante justice and harm to victim clearly place the case within Nuku band two, a starting point of two years’ imprisonment appropriately reflects your relatively limited role in a conspiracy of which Ms Burns-Wong-Tung was the principal architect.

Uplift for the driving charge

[29]              You drove Ms Burns-Wong-Tung to and from the scene of the fatal knife attack, despite being disqualified from driving at the time. You have two previous convictions for driving whilst disqualified, two previous convictions for driving while forbidden and two previous convictions for driving while suspended. You are, in that respect, a recidivist and seemingly unrepentant offender.

[30]              Comparable cases suggest a starting point for the offence of around eight months’ imprisonment.18

[31]              I am, however, required to consider the totality of your offending and not impose a sentence with separate component parts which results in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. I take into account also your entitlement to a modest discount (in my view, no more than five per cent) on account of your late guilty plea to what was, in reality, an unanswerable charge.19

18 See Muhinda v New Zealand Police, above n 16. I accept Mr Dufty’s submission  that the  offending in Apiata v New  Zealand  Police  [2016]  NZHC  3119,  where  a  starting  point  of 12 months’ imprisonment was identified (for 20th to 23rd convictions for driving while disqualified/suspended), was more serious.

19 Your driving having been recorded on multiple CCTV cameras.

[32]              I intend to impose an uplift of three months’ imprisonment on the driving charge.

[33]              I am also required to disqualify you from driving for a minimum period of one year.

Aggravating and mitigating factors personal to you

Prior offending

[34]The Crown seeks an uplift of three months’ imprisonment to reflect:

(a)convictions in 2007 for male assaults female and common assault; and

(b)convictions for aggravated robbery in 2009 for which you received concurrent sentences of five years’ imprisonment.

[35]              I do not regard this offending as sufficiently proximate in time or related in subject matter to warrant an uplift.

Personal circumstances

[36]              I have read the PAC report and Ms Turner’s comprehensive s 27 report. These give some insight into your background. You are one of 13 children who, with no father at all in your life, grew up around alcohol, drugs and gangs. You unrepentantly embraced that lifestyle from an early age on the self-declared basis that it was “cool”. You have never held down steady employment and proudly confirm your patched status with the Mongrel Mob, of which you have been an active member since 2015.

[37]              The overall impression is of someone who celebrates his life outside the law, has little remorse for your involvement in Mr Ngaronoa’s death20 and little or no desire to rehabilitate yourself, albeit that I note you have, as what has to be a necessary first step in any rehabilitation, completed successfully an alcohol and drug relapse prevention course.

20     Acknowledging some contradiction in this respect between what you told the PAC report writer and what you conveyed to Ms Turner.

[38]              Against this background, any discount for personal circumstances is necessarily limited. However, there can be no denying you are the product of your background. Yours is the all-too-common story of total familial dysfunction. You were shunted from one relative to another; never had any stable schooling, with the result that you are today, as a 35-year-old, still illiterate; were introduced into the drug trade as someone who manned the tinnie house at an early age; and lived surrounded by violence, drug and alcohol addiction, and gang affiliation. You probably never had a chance and those responsible for your care as a child and adolescent should hang their heads in collective shame.

[39]              I allow a 10 per cent discount to take into account family background by way of contribution to your offending profile.

Sentence

[40]Mr Hemopo, please stand.

[41]              On the charge of conspiracy to injure Mr Ngaronoa with intent to injure, I sentence you to two years’ imprisonment.

[42]              On the charge of driving whilst disqualified (third or subsequent), I sentence you to three months’ imprisonment, to be served concurrently with the previous sentence. That means the total prison term is two years. I note home detention is not sought as there is no available address. I am unlikely to have entertained it anyway.

[43]              I disqualify you from holding or obtaining a driver’s licence for a period of one year and six months from today’s date.

[44]Stand down.

Muir J