R v Herewini

[2024] NZHC 2379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-092-9267

[2024] NZHC 2379

THE KING

v

TERATUTONU HEREWINI

Counsel:	S R D D Bicknell Young for Crown I A Jayanandan for Defendant
Sentenced:	23 August 2024
Charges:	Wounding with intent to cause grievous bodily harm
Plea:	Guilty

SENTENCING NOTES OF WILKINSON-SMITH J

Solicitors/Counsel:

Kayes Fletcher Walker, Auckland I Jayanandan, Barrister, Auckland

R v HEREWINI [2024] NZHC 2379

Introduction

[1]    Mr Herewini, on 16 April 2024, you pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.1 You originally faced a charge of attempted murder, and your plea was entered to the alternative charge of wounding with intent to cause grievous bodily harm on the morning of trial.

[2]    In entering your guilty plea, you accepted a summary of facts. It is necessary for me to summarise those facts in this decision.

[3]    On 7 November 2022 at approximately 6.00 pm, you arrived at the Ōtara town centre where members of the Tribesmen Motorcycle gang were gathering for a meeting. You are described as a senior patched member of the gang.

[4]    At approximately 6.29 pm, Dion Snell, the National President of the Tribesmen Motorcycle gang arrived at the Ōtara town centre parking his vehicle in a carpark just across from where some other gang members were gathered. Mr Snell spoke with another gang member.

[5]    You approached Mr Snell and his associate. A verbal altercation occurred, and you fired three shots in close succession whilst standing close to Mr Snell. Mr Snell ran through the carpark, apparently to avoid being shot further. You pursued Mr Snell, aiming your firearm at him as you ran.

[6]You then left the scene.

[7]    Mr Snell was driven to Middlemore Hospital emergency department where he underwent surgery and was treated for his wounds. He had been shot once through his lower left chest wall with the bullet entering one side of his stomach and exiting through the other. The entry and exit wounds are described as connected but superficial. I take that as a medical term meaning that they did not actually create any major internal damage — very fortunately. The second shot went through Mr Snell’s right forearm. That injury required surgery.

1      Crimes Act 1961, s 188(1). Maximum penalty: 14 years imprisonment.

The principles and purposes of sentencing

[8]    In sentencing you, I must have regard to the purposes and principles of sentencing. Those I consider particularly relevant in your case are:2

(a)Accountability for harm done.

(b)Promoting in you a sense of responsibility for, and an acknowledgement of your role in that harm.

(c)To denounce the conduct in which you were involved. That is important, not only for you, but because gun violence in Auckland has escalated and it must be made clear that having loaded guns and using loaded guns is not something that can become normalised in our community.

(d)To deter you from behaving this way in the future and to deter others who may think about offending in this way. There must be a deterrent element to your sentence to disincentivise others from causing similar harm. This is linked to the previous issue of denouncement. Gun violence is causing problems. It is hurting families and it is putting men like you in custody.

(e)To assist with your rehabilitation — this serves to not only improve your personal circumstances going forward but to further reduce your risk of re-offending.

[9]    I must take into account your personal, family, whānau, community and cultural background; the gravity of your offending; and the general desirability of consistency with appropriate sentencing levels.3 I must also impose the least restrictive sentence that is appropriate in the circumstances and consider any personal circumstances that would render the means of dealing with your offending

2      Sentencing Act 2002, s 7(1).

3      Section 8(a),(e) and (i).

disproportionately severe.4 In that regard, I note the presence of a very large number of you whānau in Court today. It is to your credit that they are here to support you and it is something that will help you get through this no doubt.

[10]   I will first determine “the starting point” for your sentence based on the seriousness of the offending.

[11]    Secondly, I will consider your personal circumstances, including the appropriate credit for your guilty plea. That will produce your end sentence.

Starting point

[12]   The Crown considers that your offending falls within the top of band 2 and the bottom of band 3 of R v Taueki and submits that a starting point of eight to nine years’ imprisonment is appropriate.5 Ms Jayanandan, on your behalf, submits that your offending falls within band 2 of Taueki and that a starting point of six years’ imprisonment is appropriate.

[13]   In Taueki the Court of Appeal established three bands for wounding with intent to cause grievous bodily harm taking into account both matters contributing to the seriousness of this type of offending and matters reducing the seriousness.6

[14]   Band one is a starting point of three to six years’ imprisonment for offending involving violence at the lower end of the spectrum of grievous bodily harm offending.7 A starting point at the lower end of the band is appropriate where none of the identified aggravating factors are present; a higher starting point is required when one or more of the aggravating factors are present.8 Band two proposes a starting point of five to 10 years imprisonment for offending involving two or three aggravating factors.9 Band three proposes a starting point of nine to 14 years’ imprisonment for

4      Section 8(g) and (h).

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

6 At [34].

7 At [34].

8 At [36].

9      At [34] and [38].

serious offending involving three or more of the identified aggravating features, where the combination is particularly grave.10

[15]The Crown submits that the following relevant aggravating factors apply:

(a)the use of a firearm which is a lethal weapon;

(b)the serious injury suffered by Mr Snell being two gunshot wounds, one to the chest;

(c)a level of premeditation involved in the attack; and

(d)the offending occurring in a public place.

[16]The Crown has not identified mitigating factors of the offending.

[17]   Your counsel accepts that use of a weapon and offending in a public place are aggravating factors. Your counsel says that there was no significant level of premeditation and in particular says that this is not a case where you left the scene to get a weapon intending to shoot your victim. I note however that you did obviously know there was a weapon at the scene; you had it available to use and when things got heated you did use it.

[18]The following cases have been cited to me:

(a)R v McDonald:11 a starting point of eight years’ imprisonment imposed for one charge of wounding with intent to cause grievous bodily harm.12 Mr McDonald’s offending occurred at a birthday party and involved the use of a sawn-off shot gun. Mr McDonald pursued his victim up a hill after he was mocked, firing a warning shot into the ground before firing a second shot into the victim’s leg. The Court considered there to be

10     At [34] and [40].

11     R v McDonald [2022] NZHC 2808.

12 At [91].

three aggravating factors: use of a weapon, serious injury, and premeditation.13

(b)R v Taki:14 a starting point of nine years’ imprisonment was imposed for one charge of wounding with intent to cause grievous bodily harm.15 The victim had challenged Mr Taki  to  a  fight  after  an  argument. Mr Taki possessed a .22 firearm which he fired into the air to draw the victim outside. From his vehicle, Mr Taki fired four to eight shots in the victim’s direction from about five to eight meters away — the first shot hit the victim’s hands which were in front of his chest. Mr Taki then shot at the victim when he tried to run away hitting the victim twice in the back. The Court identified the aggravating factors as premeditation, use of a weapon, extreme violence, and serious injury.16

(c)R v Amohanga:17 a starting point of 10 years’ imprisonment was imposed for wounding with intent to cause grievous bodily harm.18  Mr Amohanga also faced charges of unlawful possession of a firearm, threatening to kill and common assault. Mr Amohanga had entered the victim’s address with a sawn-off shot gun after having a verbal altercation  with   his   ex‑partner,   the   victim’s   current   partner. Mr Amohanga fired a single shot at close range towards the victim who sustained a wound to his abdomen. The Court considered that the use of a weapon, extreme violence, serious injury, premeditation, and the entry  on  the  victim’s  property  were   aggravating   features   of   Mr Amohanga’s offending.19

[19]   I consider your offending more serious than that in McDonald. The shots you fired were not warning shots and they were not fired at limbs. The shots were fired in close proximity to Mr Snell who would have had little time to react.

13 At [72].

14     R v Taki [2022] NZHC 1801.

15 At [30].

16 At [28].

17     R v Amohanga [2021] NZHC 1121.

18 At [16].

19 At [15].

[20]    In Taki significantly more shots were fired in the victim’s direction including shots fired at the victim’s back as they fled. Although it is apparent you were pointing your firearm at Mr Snell when he fled, you did not fire shots at him at that stage.

[21]    The Crown accepts that the offending in Amohanga is more serious given the increased number of charges and aggravating factor of entry into the victim’s home which is not present in this case.

[22]I find the aggravating factors of your offending include:

(a)A degree of premeditation — you approached Mr Snell carrying a loaded firearm. You must have known that there was a loaded firearm available and accordingly there was a real risk that you would use the weapon.

(b)Serious injury — Mr Snell suffered two gunshot wounds, one wound to his lower chest wall and the other in his forearm. The forearm wound required surgery. Your lawyer submits that the injury was not serious. I am unable to accept that submission. It did not amount to grievous bodily harm in the sense that the actual injury was not life threatening, but it was still serious. Two gunshot wounds including one to the chest and another requiring surgery meets the definition of serious injury in my view.

(c)Use of a weapon — you used a firearm in the attack, firing multiple shots. You must have aimed it at the victim – you hit him twice. The use of this lethal weapon is the most serious aggravating factor.

[23]   Both counsel acknowledge that a further aggravating factor of your offending is that it occurred in a public place. There were other members of the Tribesmen gang gathered nearby. Taueki recognises potential danger to the public as relevant to the aggravating factor of the use of a weapon rather than as a separate aggravating factor.20

20     R v Taueki [2005] 3 NZLR 372 (CA) at [31].

[24]   Having identified at least three aggravating factors, I consider that your offending falls within band three of Taueki. I view your offending as serious; you fired several shots at close range towards the victim, it was just luck that the inflicted wounds were non-fatal. As I have said I am cognisant of the amount of gun violence in Auckland in recent times. There is a need to deter the use of firearms. The offending was also gang related. It is always possible to distinguish one case from another and to prefer some aggravating factors as having more weight in some cases than in others, but this is a situation where gang association resulted in the use of a firearm to shoot a person multiple times in public. You are incredibly lucky, Mr Herewini, that you are not here being sentenced for a homicide, and Mr Snell is very lucky to be alive.

[25]   Assessing the above aggravating factors and relevant case law, I consider a starting point of eight and a half years’ imprisonment is the least restrictive starting point that I can impose.

Uplifts

[26]   The Crown submits that an uplift of six to nine months’ imprisonment is appropriate to reflect your previous convictions. You have a total of 40 previous convictions, including convictions for aggravated robbery, aggravated assault and assault with intent to injure. Prior to this offending, however, your most recent conviction was nearly a decade ago occurring in 2013.

[27]   I must take into account the number, seriousness, date, relevance, and nature of your previous convictions.21 However, the presence of a criminal history does not in and of itself justify an uplift — an uplift is a considered response to specific aspects of an offender’s criminal history.22 Your criminal history shows a historic tendency for violence offending, but I must also consider your age at the time of the earlier offending, and the time that has elapsed since your latest conviction. Your history does suggest some predilection to commit violence offences involving weapons, but I think that it is very much to your credit that you stayed offence free for seven years, taking into account the time you were in custody. That is not an easy thing to do given

21     Sentencing Act 2002, s 9(1)(j).

22     Gavin v R [2018] NZHC 1826 at [20].

the life that you were living and had lived, and I do give you credit for that reflected by the fact that I do not consider an uplift is warranted to reflect previous convictions. Those convictions are now over 10 years ago and at the time of this offending were nine years ago. I am not going to uplift for your previous offending.

Credit

[28]   I turn now the reduction for your guilty plea. You pleaded guilty to the alternative charge of wounding with intent to cause grievous bodily harm on the morning of what was scheduled to be a four-week jury trial.

[29]   Resolution on this alternative charge was proposed on 21 June 2023. You did not accept that. The Crown submits that a reduction of 10 per cent would be appropriate to recognise that you did take responsibility for your offending, and you did save the State the expense of a trial. Ms Jayanandan submits that a reduction of 20 per cent would be appropriate.

[30]   This plea was very late. Your counsel says that the reason for that was CCTV footage provided to her had some issues and it was not until the morning of trial that she saw the CCTV footage in the form that the jury would see it. That CCTV footage did not apparently support the defence that you would have run.

[31]   It was of course always open to you to plead guilty to the alternative charge — at least since June 2023. You obviously knew what happened and as was said in Moses v R where a person who is well aware of what has happened chooses to make a tactical or strategic decision based on likelihood of acquittal at jury trial, the guilty plea discount that can be applied for a late guilty plea is limited.23 I did walk into this Court room thinking that I would apply a 10 per cent discount for guilty plea, however I have listened to your counsel and I am prepared to increase that to 15 per cent because I accept that there were issues around the evidence that was provided to your counsel and issues around the advice that you received as a result. I think 15 per cent is generous for a plea on the morning of trial.

23     Moses v R [2024] NZCA 121 at [42]–[43].

[32]   I now turn to consider your other personal mitigating factors. You seek a global credit of 25 per cent for your remorse, prospects of rehabilitation and personal mitigating factors that contributed to your offending as identified in the provided reports. You also seek a further 10 per cent credit acknowledging the time you have spent in custody, the impact this has had on your mental wellbeing and your children, as well as the prospect of further time spent in non-voluntary isolation in custody.

[33]   I have been provided with a pre-sentence report (PAC report) and a cultural report. I have read the letters that you have provided. You and your long-term partner have each provided letters to the court.

[34]   You have four children aged between five and 20 years old. You have said that you do not want your kids to follow in your footsteps and that your main motivation for leaving the ‘gang lifestyle’ was to be there for your youngest son who you have raised since he was a baby.

[35]   You are supported by your partner, children, siblings and parents, and have a large number of family in Court today. You view this support network as pro‑social. Both of your parents are now heavily involved in the Mormon church — your father is a bishop. However, throughout your childhood your father had issues with drugs and alcohol and there was aggression and violence in your household. You recall being unable to attend school on some occasions due to obvious bruising.

[36]   You belong to Ngāpuhi iwi and were raised on your family’s ancestral homeland in Ōtaua before moving to Kaikohe at six-years-old. When you were 10‑years-old your family joined the Mormon church and the drug and alcohol issues, and violence ceased. Your family and siblings then moved to Auckland leaving you in the care of your grandparents. You resumed living with your family when in intermediate school.

[37]   At approximately 13-years-old you joined your first street gang and began stealing and breaking into cars. You began smoking cannabis daily and regularly drinking. You left school at 15-years-old when charged with kidnapping for a home invasion offence. You were sentenced to three-and-a-half years’ imprisonment.

Whilst incarcerated you joined the Killer Beez to prevent bullying and ward off sexual advances. During this time, you achieved all three levels of NCEA qualification, which really demonstrates, Mr Herewini, how much more you have to give society than what is demonstrated by where you sit today.

[38]   After struggling to find work upon your release, you breached your bail conditions and went on the run, committing crimes to survive and living hand‑to‑mouth alongside other gang members also seeking to avoid police detection. Consequently, you were imprisoned in a maximum-security prison for four years. In your mid‑20s you began consuming methamphetamine. You report that your methamphetamine usage stopped in 2012 and that you were sober at the time of your offending. You joined the Tribesmen which is a typical transition for Killer Beez members to make as they get older. When speaking of this decision you said that you knew no other lifestyle and felt trapped in the cycle.

[39]   The PAC report states that you “didn’t want to hurt or harm [Mr Snell]” and that you had approached Mr Snell to ask about exiting the gang as you were concerned for your family’s safety following armed altercations between  Tribesmen  and  Killer Beez gang members in the Ōtara area.

[40]   The PAC report writer considers that remorse expressed for your actions seems focused on the situation you now find yourself in. When discussing your offending you said that “things got heated real fast”, that you did not remember what happened and that you “just reached” for the gun. I do not regard that as mitigating. You should not have had a loaded gun available. I do accept though that leaving a gang can be fraught with difficulty and danger.

[41]   You are assessed as a high risk of re-offending posing a medium to high risk to others. It is apparent that you are resigned to the imposition of a long term of imprisonment — considering it inevitable and viewing yourself as institutionalised. I think Mr Herewini before you give up completely, you should look behind you at your family because you do have more to offer, and you do not need to live up to that institutionalisation.

[42]   You were not employed prior to your incarceration and had been focused on raising your son. Your partner describes you as a devoted family man with strong Christian values and a genuine desire for change and growth. This is apparent in your resolve to leave the Tribesmen for the benefit of your family and from the rehabilitation efforts you have made including certificates you have obtained despite your incarceration. Both you and your partner record that your children are suffering in your absence and acknowledge the toll your detention has had on your family.

[43]   Your plans for the future are to live what you describe as “a basic, simple family life” and you hope to spend your time in custody working and being educated. Your letter clearly expresses a desire to change.

[44]   I am prepared to grant a modest credit to reflect the difficulty your incarceration has had and will have on your family and children, and to reflect the difficulties in your upbringing which led to you involving yourself in a gang from a very young age. I set that at 10 per cent.

[45]   I cannot give a credit for the time you have spent in custody but that will count as part of the sentence you must serve, and I think you know that. Your end sentence date will be calculated to take that into account. Effectively, you have already served quite a lot of your sentence.

[46]   I do not see any particular marker of remorse justifying a discreet discount for remorse. I suspect that in your own head you feel that you did not have another option and you could not have done anything differently at the time of the offending. You are no doubt sorry for the situation you find yourself in and wish it had not happened but that is a common response and is not indicative of an unusual or exceptional level of remorse justifying a discreet additional credit.

[47]   Your rehabilitative prospects are not as bad as might be expected from the PAC report. That is because you have previously demonstrated an ability to remain offence free for a period of years. You were in custody for about two years of the nine years that you remained out of trouble before this offending, but it is still to your credit that you did manage to turn your life around for a period and it gives me some comfort that

you can do it again. I have already acknowledged that situation in my decision not to uplift your sentence to reflect your criminal history. I need to be careful not to double count that. I will however apply a further five per cent to reflect your rehabilitative prospects.

[48]   That brings the overall credit including guilty plea, remorse, rehabilitation, and effect of incarceration on your family to 30 per cent. A 30 per cent credit in a situation where you pleaded guilty on the morning of trial is a very large credit, Mr Herewini.

[49]   From the starting point of eight and a half years that leads to a deduction of very close to two years and six months which would result in an end sentence of six years.

[50]   Standing back and looking at the sentence I am of the view that I could not impose a sentence lower than six years and I regard that as the least restrictive sentence I can impose. It could easily have been a higher sentence.

Result

[51]Mr Herewini would you please stand.

[52]   On the charge of wounding with intent to cause grievous bodily harm, you are sentenced to imprisonment for six years.

[53]Stand down.

Wilkinson-Smith J