R v Huriwaka
[2024] NZHC 3197
•31 October 2024
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT A IS TO CONTINUE IN ACCORDANCE WITH S 286 OF THE CRIMINAL
PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-042-001974 CRI-2023-042-001869
[2024] NZHC 3197
THE KING
THE DEPARTMENT OF CORRECTIONS
v
ARANA TAMITI HURIWAKA
CRI-2023-042-001974 THE KING
v
A
Hearing: 31 October 2024 Counsel:
J M Webber for Crown
J D Lucas for Defendant Huriwaka M J Vesty for Defendant A
Sentence:
31 October 2024
SENTENCING NOTES OF LA HOOD J
R v HURIWAKA [2024] NZHC 3197 [31 October 2024]
[1] Arana Huriwaka, you appear for sentence having pleaded guilty to one charge of manslaughter,1 and three charges of breaching home detention.2
[2] You are also to be sentenced on various driving offences for which you were sentenced to seven months’ home detention, on the basis you immediately breached that sentence and went on to commit the manslaughter offending.
[3] Ms A, you appear for sentence having pleaded guilty to supplying methamphetamine,3 two charges of offering to supply methamphetamine,4 possession of cannabis,5 and one charge of accessory after the fact to manslaughter.6
[4] In sentencing each of you today, the main purposes of sentencing are to hold each of you accountable for the harm you have caused; to promote a sense of responsibility for that harm; to denounce and deter your conduct; and to assist in your rehabilitation and reintegration into the community.7 I must consider the gravity of your offending and the degree of your culpability. Your sentences must be consistent with sentences imposed in other reasonably similar cases,8 and I should impose the least restrictive sentence appropriate in the circumstances.9
[5]In sentencing you I will:10
(a)Start by describing the facts of your offending generally.
(b)I will then set out a starting point based on the aggravating and mitigating factors of the offending. The objective there is to adopt a
1 Crimes Act 1961, ss 160, 171 and 177; maximum penalty life imprisonment.
2 Sentencing Act 2002, s 80S; maximum penalty one year imprisonment or $2,000 fine.
3 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2); maximum penalty life imprisonment.
4 Misuse of Drugs Act, ss 6(1)(c) and 6(2); maximum penalty life imprisonment.
5 Misuse of Drugs Act, s 7(1)(a) and (2); maximum penalty three months’ imprisonment or $500 fine.
6 Crimes Act, ss 171, 71, and 312; maximum penalty seven years’ imprisonment.
7 Sentencing Act, s 7.
8 Section 8(a) and subs (e).
9 Section 8(g).
10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
starting point which reflects the culpability, or seriousness, inherent in the offending.
(c)Finally, I will consider your personal circumstances and apply uplifts or reductions to the starting point based on them. This will bring me to a final sentence for each of you.
Impact on victim’s whānau and friends
[6] However, I want to start by acknowledging the victims in this case and the victim impact statements they have completed. Statements have been completed by Vanessa Lane, who has a child with Mr Barton, and Toni Barton, Mr Barton’s mother. Ms Lane details the hurt she has suffered, and the significant grief her and her son are experiencing from the loss of Mr Barton. She describes Mr Barton as a loving father who would have done anything for his son, and the nightmare they can’t wake up from with him gone. Ms Barton has expressed the same sentiment; that Mr Barton’s son meant everything to him and that he has seemingly endless questions and tears over the sudden loss of his father. Ms Lane and Ms Barton, I acknowledge your deep grief and loss and the grief and loss that the whole of your whānau is experiencing. No sentence I impose today will make up for what has been taken from you. I also acknowledge that Mr Ormsby, Mr Huriwaka’s father, has spoken in support of Mr Huriwaka today and that there are others present for Mr Huriwaka and I think Ms A in support, and I thank them for attending.
The offending
[7] I begin by describing the offending. The facts will be known to you both, and to many people here in Court today, but it is important that the broader public is aware of the basis on which you are being sentenced.
[8] Mr Huriwaka, you were sentenced to a term of seven months’ home detention on 10 October 2023, in the Christchurch District Court by Judge Crosbie on eight driving offences.11 You were inducted into that sentence on 17 October 2023, and you
11 Mr Huriwaka was also convicted and discharged on a charge of failing to answer District Court bail.
breached it immediately by leaving your address without an approved absence that same day. You breached the sentence on two further occasions, on 26 October 2023, and on 10 November 2023, the day that you killed Mr Barton.
[9] On 10 November 2023 you left your home detention address, having foiled your electronic monitoring bracelet. You were driving a white BMW, which was a further offence given that you had been disqualified on 10 October 2023. You went to the address of some gang members and began drinking, which amounted to a breach of your home detention sentence. You have also admitted smoking cannabis that day, which was yet another breach of the home detention sentence.
[10] You and your associates decided to visit other gang associates in Richmond and Stoke. You drove yourself and two associates to a service station and the adjoining bottle store where you picked up your then-girlfriend, Ms A. You drove the group towards Nelson, with alcohol in the car. You were driving aggressively and in a bad mood.
[11] You visited an address looking for associates, but no-one was home, so you went to a second address where the occupants were home, and you all spent some time there. You were then involved in an altercation with an occupant at the second address and were asked to leave.
[12] You drove the group away towards Stoke. You were in an agitated and aggressive state that affected the way you drove. At approximately 7:00 pm you arrived at Mr Barton’s property, parking out the front of the multi-story house. Mr Barton was a patched member of the Mongrel Mob, and so are you. You went to his address intending to assault him over perceived failures to follow Mongrel Mob rules and report properly to senior chapter members in Christchurch.
[13] You left the car and approached the front door of the house. Unsuspecting, Mr Barton went downstairs to greet you. Mr Barton’s partner remained upstairs and heard a male voice yelling at Mr Barton saying, “Where the fuck have you been, dog?” and “Who do you think you are, you have not been clocking in”. In the downstairs entry, you held Mr Barton and began repeatedly punching him in the body area in an
uppercut motion whilst yelling “Where the fuck have you been dog?” Mr Barton replied “I’ve been here, I’ve been around dog”. You replied “I’m the fucken captain not you, I’m the fucken captain”.
[14] Mr Barton’s partner was on the upper floor of the house looking for a phone to call for help. She went down the stairs and was able to see over the top of the door that blocked the bottom of the stairs to the entry way. She saw you repeatedly punching Mr Barton, who was not fighting back. She ran back upstairs and instructed her son to get out the window of an upstairs bedroom and to jump down and run to the neighbouring address.
[15] You are younger and stronger than Mr Barton, and in the course of your concerted attack on him, Mr Barton pulled out a knife. There is no evidence that you brought the knife to the property and it is accepted that Mr Barton produced the knife in self-defence. However, in a struggle over the knife you stabbed Mr Barton’s neck, piercing his carotid artery causing him significant bleeding. The wound was fatal. Mr Barton also received a minor stab wound to his right wrist, and cuts elsewhere, that were likely defensive wounds.
[16] Mr Barton’s partner went down the stairs for a second time. Her dog was barking behind the door at the bottom of the stairs. You told Mr Barton “Don’t you let that dog through, don’t you let your dog out or I will stab it”. Mr Barton held the door shut behind him preventing his partner or the dog from coming through. Mr Barton’s partner then heard you tell Mr Barton “Hold this to your neck”, “Hurry up and hold this to your neck”. Your associates came to the door and you handed one of them the knife and told him to get rid of it. He wiped it and placed it on a nearby fence.
[17] Mr Barton’s partner escaped out of an upstairs window to the neighbour’s address and returned with her uncle to help Mr Barton, calling emergency services at about 7.07 pm. Mr Barton was still alive when paramedics reached him. He had suffered significant blood loss. He was taken to hospital, but he could not be saved and he died there at about 8.05 pm.
[18] You drove yourself and your two associates and Ms A back out of Motueka, and you dropped them off at the car park where you previously picked up Ms A. Various items were thrown out of the vehicle on the way. You went home, showered, and changed your clothes before driving to Ms A’s address.
[19] Both of you then drove in separate cars, in tandem, to a secluded location at an associate’s rural property where you parked the white BMW. Ms A, you then drove Mr Huriwaka back to Motueka in your car. You went to your house and you got changed and collected cleaning products, before leaving your address again at about
9.49 pm. Ms A, you assisted with cleaning the car. Mr Huriwaka also left various items with you to be disposed of, including the keys for the BMW. You disposed of some but not all of the items. You therefore helped Mr Huriwaka in seeking to hide or destroy evidence.
Drug charges –– Ms A
[20] In the course of the investigation relating to the manslaughter, Ms A you became a person of interest to the police and the police intercepted your phone calls and text messages between 14 November 2023 and 1 December 2023. The police discovered that:
(a)on 14 November 2023 you supplied half a gram of methamphetamine to a 41-year-old male for $350.00;
(b)on 21 November 2023, you offered to supply 2 grams of methamphetamine to the same male;
(c)on 26 November 2023, you offered to supply 0.5 to 1 gram of methamphetamine to the same man; and
(d)on 1 December 2023, the police located 14.6 grams of cannabis in your possession on the execution of a search warrant at your address.
Mr Huriwaka
[21]Mr Huriwaka, I will start with your sentence.
Starting point
[22] There is no guideline decision on sentencing for manslaughter. As your offending involved serious violence, R v Taueki provides relevant guidance for assessing the aggravating and mitigating features of the offending. However, as Taueki is the tariff case for a charge of grievous bodily harm, further allowance is required for the fact that death occurred.12 I consider the relevant aggravating features are as follows:
(a)The use of a weapon, that is the knife, which is a serious aggravating factor as it is inherently dangerous and capable of inflicting serious harm.
(b)The extent of the harm and serious injury. The stab wound to Mr Barton’s neck was relatively small in size, however it was fatal, and Mr Barton lost his life as a result.
(c)The attack took place in Mr Barton’s home, where he had a right to expect to be safe. His partner and young child were present upstairs, and his partner had to witness some of it.
(d)There was pre-meditation as you went to the address for the purpose of attacking Mr Barton in the context of intra-gang rivalry. While you did not set out to kill, you did go there intending to assault Mr Barton.
(e)Finally, in terms of aggravating features, is the gang context. Membership in a gang and a desire to exert control over the gang’s affairs in the region is what led to the violence you inflicted in this case.
12 R v Tai [2010] NZCA 598 at [11]; and R v Jamieson [2009] NZCA 555 at [34].
[23] The Crown submits that a starting point in the range of eight to nine years would be appropriate given those factors.
[24] Your lawyer, Mr Lucas, submits that the offending may attract a starting point of eight years imprisonment.
[25] Counsel have referred me to a number of cases,13 including R v Olley,14 and R v Kaihau.15
[26] In the present case, there are at least three aggravating factors present to a strong degree (use of a lethal weapon, home invasion, and the gang context) and premeditation is present to a lesser degree. I agree with the Crown’s submission that the offending would fall at the upper end of band two (five to 10 years’ imprisonment) or the lower end of band three (nine to 14 years’ imprisonment in Taueki).
[27] Mr Huriwaka, your attack on the Mr Barton involved serious violence, in the context of an intra-gang dispute in which you sought to exert your authority and control over Mr Barton who was smaller and older than you and unsuspecting of any attack when he came to greet you at the door. The harm you inflicted with the knife was fatal, and a life has been lost. The starting point must reflect that. I consider nine years’ imprisonment to be the appropriate starting point.
13 R v Hohua [2021] NZHC 1242; R v McKenzie [2019] NZHC 2976. See also R v Chen [2023] NZHC 1947; and R v Owens [2017] NZHC 319; R v Ariki [2015] NZHC 3240; R v Harnwell [2021] NZHC 3409; R v Windley [2024] NZHC 1438.
14 R v Olley [2012] NZHC 40 involved an offender found guilty of manslaughter for stabbing a victim in a kitchen of a boarding house after a dispute. Drugs had been consumed and an altercation ensued during which the offender inflicted a fatal stab wound into the victim’s heart, as he was sat on a chair. The aggravating factors were use of a lethal weapon (knife) used in a violent rage, extreme violence, the victim presented no material threat and was vulnerable (due to his slight build compared with the defendant and his seated position). Woodhouse J adopted a starting point of nine years’ imprisonment uplifted by one year on account of the offender’s violent criminal history and offending while on parole and while under a sentence of supervision.
15 R v Kaihau [2013] NZHC 3192 involved an offender found guilty of manslaughter. On New Year’s Eve and while on bail with a curfew, the offender was on a private property, when he encountered a stranger who urged the offender to leave. The offender stabbed him in the side of the head and he collapsed on the spot, fatally wounded. The aggravating factors were extreme violence (unprovoked and gratuitous), use of a weapon, vulnerable victim and attack to the head. Dobson J took a starting point of eight years and nine months’ imprisonment.
Uplift for breach of home detention
[28] I uplift the starting point to reflect the three charges of breaching home detention. Two of those charges are unrelated to the manslaughter offending, and the other is on the day of the attack. All were significant breaches by you leaving your home detention address. That happened right at the start of the sentence. The 10 November 2023 breach is particularly significant given the offending that happened that day. I consider an uplift of 12 months’ imprisonment is appropriate to take account of all three breaches.
Re-sentencing on driving charges
[29] I now turn to the appropriate starting point for the driving offences for which you were sentenced by Judge Crosbie on 10 October 2023 in Christchurch to seven months’ home detention.16 I must re-sentence you for this offending.17 While I can consider the original sentence imposed, I must form my own opinion as to the appropriate sentence.18
[30]The charges on which you are to be re-sentenced are:
(a)Driving while disqualified, and driving with a controlled substance in your blood (31 December 2022);19 and
(b)Seven charges of driving while disqualified (between 8 November 2022 and 22 February 2023).
[31] Judge Crosbie sentenced you following a sentence indication on 27 June 2023. The lead charge taken was the driving whilst disqualified and under the influence of drugs on 31 December 2022. I adopt Judge Crosbie’s description of the offending, as follows:
16 New Zealand Police v Huriwaka [2023] NZDC 22382.
17 Sentencing Act, s 80F.
18 R v Morgan [2008] NZCA 232 at [14]–[15].
19 Land Transport Act 1998, ss 32(1)(a) and 32(4) (driving whilst disqualified, third or subsequent offence) and ss 58(1)(b) and 58(3) (driving under influence of controlled drug); maximum penalty two years’ imprisonment or $6,000 fine and minimum 12 months’ disqualification.
You were on a motorcycle around Swannanoa, having no ability to drive at all. You overtook a car. You lost control when approaching a one-way bridge east of the Diversion Road intersection. You fell off at the corner and you were ejected from the motorcycle. You were taken to hospital by a friend. Analysis of the blood specimen contained methamphetamine, a class A drug.
[32] The Judge considered an overall starting point of two years’ and six months’ imprisonment was appropriate. It appears the starting point recognised your significant history of driving offending, driving whilst disqualified or equivalent (nine previous convictions), dangerous driving and failing to stop. I see no basis on which to differ from the original sentencing Judge’s conclusion as to the starting point. But having regard to the totality of your offending, I consider the driving charges should now be dealt with by an uplift of 12 months’ imprisonment to the starting point for manslaughter.
Personal aggravating and mitigating circumstances
Previous convictions
[33] You have an extensive criminal history of violence, breaches of sentences and release conditions,20 and driving whilst disqualified. I am not going to outline all of it here, but I note your extensive number of violence and weapons convictions, most recently assault with intent to injure in 2022, two assaults in 2019, threatening to kill or do grievous bodily harm with a firearm in 2015, common assault in 2015, assault with a firearm or airgun in 2015, injuring with intent to cause grievous bodily harm in 2015, among other similarly serious offending further back in time.21
[34] The Crown submits that I should apply an uplift of 12 months to take into account your significant history even putting to one side your driving convictions that were taken into account in setting the starting point on the sentence imposed by Judge Crosbie. Mr Lucas submits that an uplift of five per cent of the starting point for manslaughter would be appropriate, which would be about six months in this case.
20 Breach of release conditions in 2022, breach of conditions in 2018, representative breach of community work in 2015, breach of intensive supervision in 2014, breaching release conditions (x2) in 2011, breach of community work in 2011, breach of community work in 2010.
21 Including injuring with intent to injure or with reckless disregard in 2010, discharging a firearm in or near a dwelling in 2011, and Youth Court notations for assault with intent to injure and common assault in 2006.
[35] Your criminal history is an indicator of your character and general disregard for the law and general disregard for the safety of others in the case of your violence offending. It enhances your culpability and increases the need for deterrence, and denunciation and it indicates the level of risk you pose to the community. I consider that an uplift of 12 months is appropriate.
Guilty plea
[36] You pleaded guilty to manslaughter once that was proposed by the Crown as an acceptable resolution. This occurred well after formal filing and after a trial date had been set. Your guilty pleas to the breach charges came very shortly before a scheduled Judge-alone trial.
[37] The Crown accepts that a credit of 20 per cent is available for the manslaughter charge and submits that a 10-15 per cent credit should be given for the breach charges. Mr Lucas submits a full 25 per cent should be given for the manslaughter charge, and does not specify the appropriate credit for the guilty plea on the breach charges.
[38]Looked at overall, I consider a 20 per cent credit for guilty plea is appropriate.
Background circumstances
[39] Turning to your background circumstances. I have considered the pre-sentence report dated 22 October 2024, the s 27 report prepared for the District Court sentencing you on the driving charges, and the psychiatric report dated 23 October 2023.22
[40] You are a 33-year-old of Ngāti Maniapoto whakapapa. You had a transient upbringing with your care moving between various whānau members and the state. From the age of two your father was sent to prison for 14 years; you had contact with him about once a year during his sentence. You grew up around gang members, those in your immediate and extended family were Mongrel Mob members. You suffered serious physical abuse as a child at the hands of your stepfather and you frequently witnessed violence in the home including against your mother. At the age 13 or 14 you entered the criminal justice system by assaulting your stepfather, who had earlier
22 I made an oral order at hearing that the psychiatric report is to be provided to Corrections.
abused you. You left school around the same time and worked on-and-off due to being in and out of custody. After being kicked out of home around the age of 15, you entered the Bloods gang, which is effectively a youth chapter of the Mongrel Mob. You then began appearing in the Youth Court on a regular basis. Since the age of 18 you describe yourself as spending more time in prison than out. However, you also have two children who live with their mothers. You use methamphetamine, but you don’t consider yourself addicted. The psychiatrist reports that you described “long- standing problems with alcohol abuse, a key driver of problems with impulsivity and violence, and a year-long period of methamphetamine dependence in 2018”. It seems your entry into gang life was inevitable, and violence, drug and alcohol use were normalised for you from the beginning of your life.
[41] You were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at a young age but not treated due to your family’s reluctance. The psychiatrist notes that you also meet the criteria for post-traumatic stress disorder (PTSD) associated with the repeated and severe childhood physical abuse by your stepfather. He says that you PTSD is a key factor in your substance abuse disorders, criminal lifestyle, and problems with violence. He also considers that you meet the criteria for Antisocial Personality Disorder, given your “persistent failure to conform to social norms, your problems with impulsivity, irritability, and aggressiveness, and reckless disregard for the safety of others, and consistent irresponsibility.” You pose a high risk of future violence if you continue a life embedded in gang culture. Alcohol and drug use are similarly risk factors.
[42] You have expressed some remorse for the offending and a willingness to engage in restorative justice. I have read and considered your written apology letter to the Court. You have demonstrated some insight into the harm you have caused and a desire to make meaningful changes to your life. However, it is of concern that your description of the offending in the psychiatric report conflicts with the summary of facts and minimises your role, which indicates you have not taken full responsibility for your offending.
[43] There is clearly a causal link between your upbringing of violence and social deprivation, your mental health, and your offending.23 You have also expressed some remorse. On the information before me, I consider these matters warrant a total credit of 20 per cent.
End sentence
[44] Taking a global starting point of 11 years’ imprisonment (nine years uplifted by two years for the breach and driving charges) and applying a 12-month uplift for your previous convictions, and a 40 per cent total credit (for your guilty plea and background), brings me to an end sentence of seven and a half years’ imprisonment, which is rounded down in your favour.
Minimum period of imprisonment (MPI)
[45] The Crown submits that the purposes of deterrence, denunciation, accountability and protection of the community all point to the imposition of a minimum period of imprisonment (MPI) of at least 50 per cent of the end sentence.24 I agree that it is appropriate to mark the seriousness of the offending by way of an MPI. The usual non-parole period of one-third of the determinate sentence I have come to would be insufficient to hold you accountable for the harm you have caused, to denounce your conduct and to deter others. However, as the sentences on the breach of home detention and driving charges would not on their own result in a sentence of imprisonment of more than two years, and given the unrelated nature of the driving charges to the manslaughter, I am careful to impose the MPI only in respect of the manslaughter offending.25 I consider an MPI of three years’ imprisonment is necessary for that offending.
23 See Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241, where Whata J noted there is no “clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.” Whata J also noted that “larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender” (At [63]).
24 Sentencing Act, s 86.
25 There is no prohibition in imposing an MPI on a finite sentence of imprisonment over two years on a lead charge which incorporates uplifts for other offending, but whether that is appropriate may depend on the circumstances, see Pham v R [2022] NZCA 538 at [26]; and see Huata v R [2024] NZCA 521 at [52] in respect of cumulative sentences.
Ms A
[46]Ms A, I turn to consider your sentence.
Starting point
[47] I take the charge of supplying methamphetamine as the lead charge. The guiding decision in these cases is Zhang v R,26 where the Court of Appeal discussed in detail the seriousness of methamphetamine offending and the community harm that it does. In sentencing you there is a necessary element of general deterrence, as well as holding you individually accountable for your offending, and to promote a sense of responsibility for the harm that you have done, as well as protecting the community.
[48] In fixing a starting point, there is a two-stage approach. I must first determine a band based on quantity as it “remains the first determinant of sentence”.27 After selecting the band and identifying the appropriate range I must consider the role you played in the offending in determining placement within the band.
[49] The quantity you sold and offered to supply is 3.5 grams, and therefore, falls in the upper half of band one in Zhang v R which indicates a range from a community- based sentence to four years' imprisonment. I consider that you played a lesser role, in the sense that you were motivated primarily by your own addiction, and the financial gain was low. You offered and dealt in halves or whole grams. It appears you were in contact with a supplier higher up, and on sold it only to one person. You appear to have little knowledge of the details of your supplier’s activities and there is no suggestion that you had any influence over the supplier, or that you had anyone under you in a chain.
[50] The Crown refers me to the case of Giles v R,28 and to the circumstances of the defendant Crighton, one of the appellants in Zhang.29 I consider Giles to be of less assistance given the case involved 15 charges of supplying methamphetamine, and the offending was to fund his lifestyle, rather than his addiction. Ms Crighton, in Zhang,
26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
27 At [103].
28 Giles v R [2020] NZHC 2372.
29 Above n 26.
faced 11 charges of offering to supply a total of 3.75 grams of methamphetamine so a similar quantity to your case. She had dealt methamphetamine to feed her own addiction as you have, and played a lesser role with no influence on those above her in the chain of operations, with little awareness of its scale if any, and little or no financial gain. In that case she was also feeding her partner’s addiction in the context of avoiding violence from her partner, which does set her case apart from yours in that respect. The Court considered all those factors warranted a starting point of two years’ imprisonment.
[51] The Crown submits that based on that case, the methamphetamine offending might therefore attract a starting point in the region of two years’ imprisonment. The simple possession of cannabis could be dealt with by way of a conviction and discharge, without any influence on the starting point.
[52] Your lawyer, Mr Vesty, submits that a starting point of a community-based sentence is appropriate, suggesting that on a stand-alone basis a sentence in the region of 200 hours’ community work would meet your overall culpability. I note Mr Vesty’s argument that the accessory charge should be seen as more serious than your drug offending. However, dealing methamphetamine contributes to the serious issues that that drug causes in our community and the Court in Zhang noted that the presumption of imprisonment will only be displaced in relatively exceptional cases.30
[53] I consider the features of your offending, that I have already referred to, warrant a starting point of two years’ imprisonment.
Accessory after the fact to manslaughter
[54] In terms of the charge of accessory after the fact to manslaughter, the starting point for this kind of offending varies widely according to the nature and seriousness of the acts involved.31 The gravity of the offending can be assessed by the nature of the principal crime, the nature and extent of assistance provided, and the outcome of the impact of that assistance.32 Your conduct involved attempts to clean the car
30 At [55].
31 R v Doyle [2019] NZHC 427 at [7].
32 R v Sweeney [2013] NZHC 1413.
Mr Huriwaka had been driving that evening and assisting him to drop it off in a remote location by following him there and taking him home. You also helped Mr Huriwaka by getting rid of items he told you to, in attempts to dispose of evidence linking him to the crime that you knew he had committed.
[55] You have reported that you knew an assault had taken place and that you went along with the events out of fear. The pre-sentence report suggests you initially were not aware your actions were a crime, but you accept that they are now. You say you had an argument with Mr Huriwaka in which you attempted to persuade him to ‘give himself up’ in response to which he seriously assaulted you. You have said that you helped because you felt sorry for him and were trying to keep the peace until the police arrived. It appears you assisted at the insistence of Mr Huriwaka, and that he took advantage of your trust in the context of being highly vulnerable and heavily reliant on him. Your relationship with Mr Huriwaka presents a complex picture, but it suffices to say that you acted in compliance with his demands, and I accept this is a mitigating feature of the offending.
[56] Counsel referred me to the cases of R v Doyle,33 R v Togiaono,34 R v Te Poono,35 and R v Tua.36 R v Doyle involves reasonably similar circumstances. The defendant was charged with accessory after the fact to manslaughter, for assisting on the instruction and insistence of her former partner and his associates to move a vehicle that had been used by a person involved in a fatal gang shooting. There, a starting point of 12 months’ imprisonment was adopted.
[57] Mr Vesty submits that, following R v Tua and the cases discussed in that case, the starting point should be in the region of nine to 10 months’ imprisonment.
[58] Having regard to the nature of the principal act, being manslaughter, which is more serious than the principal act in Tua, and the similarities of the case with Doyle, I accept the Crown’s submission that a starting point of 12 months’ imprisonment for
33 R v Doyle [2019] NZHC 427 and [2019] NZHC 856.
34 R v Togiaono [2015] NZHC 2783; and R v Togiaono [2015] NZHC 2367.
35 R v Te Poono [2020] NZHC 308.
36 R v Tua [2023] NZHC 2834. In R v Tua the defendant was charged with accessory after the fact to attempted murder, for assisting with the concealment of a vehicle used to facilitate flight from a fatal shooting. Cooke J adopted a starting point of nine months’ imprisonment.
the accessory charge alone would be available. But having regard to totality, I consider it should be dealt with by way of an uplift of six months to the two-year starting point for the methamphetamine offending.
Personal circumstances
Previous convictions
[59] No uplift is warranted on account of your previous convictions, which are reasonably historic and relate to driving offending or breaches of sentences imposed for driving offending.
Guilty plea
[60] The Crown first offered to take a plea to a charge of being an accessory after the fact to manslaughter on 4 April 2024, and reiterated this to your new counsel after your change in representation. That was on the basis that you knew promptly that Mr Huriwaka had killed Mr Barton, but it was arguable that you were not aware of a killing with murderous intent. You declined to enter a guilty plea to the reduced charge until several months later. However, in respect of the methamphetamine offending, you pleaded guilty at an early opportunity. In these circumstances, a credit of 20 per cent appears appropriate.
Background circumstances
[61] Turning to your background circumstances, I have the benefit of a pre-sentence report dated 21 October 2024, a drug and alcohol report dated 16 October 2024 and a psychologist’s report dated from Ms Fon dated 26 September 2024.
[62] You are 30 years old. The reports detail your substance abuse, including alcohol dependency, consistent use of cannabis and methamphetamine and your various attempts to combat your addictions, despite your genetic predisposition to substance abuse. You have suffered a significantly traumatic event in the period leading up to the offending, and have mental health issues including depression and ADHD.
[63] You have had a difficult upbringing, subject to physical and verbal abuse by your father who was gang affiliated and a drug-user. You recall accompanying your father on drug deals as a child and your mother was emotionally unavailable and a heavy drinker. You have a son aged six who currently resides with his father, but you have supervised access with him three days a week. A sentence of imprisonment will be harmful for him and your relationship with him.37
[64] The reports are consistent that you are genuinely remorseful about the decisions you have made, and that remorse is demonstrated by you proactively seeking help, to stop using substances and make better decisions. Your efforts include attending Narcotics Anonymous (NA), going through a detox at Odyssey House Christchurch earlier this year, although you relapsed following your Court appearance on 16 August. It also includes seeing a psychotherapist fortnightly, who confirmed to the pre-sentence report writer that you are “motivated to attend and sincerely addressing complex and traumatic issues around [your] childhood and adult life”. Although you noted that the process was very challenging to the pre-sentence report writer, you persevered.
[65] You are a client at the Te Whatu Ora Addictions Service, you are involved in a family violence service and you are engaged in counselling at a Women’s Support Group. A residential alcohol and drug treatment programme is recommended by the reports, and you are motivated to attend such treatment. As the reports make it clear that you are unlikely to be able to address your substance use issues in the community, such a programme is required. The alcohol and drug report writer notes that a women’s residential rehabilitation programme based in Christchurch may provide a safe environment for you to develop tools to maintain abstinence from substances in the community. However, it appears that until the sentence is passed there are administrative barriers to entering a fulltime residential programme.
[66] Having regard to your mental health issues, trauma, addiction, remorse and rehabilitative efforts, and the impact of a sentence of imprisonment on your child and
37 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50]–[52]; Campbell v R [2020] NZCA 356
at [41]; Berkland v R [2022] NZSC 143 at [116]; Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
your rehabilitation, I consider a total credit for personal mitigating features of 25 per cent is appropriate.
Notional end sentence
[67] Taking a global starting point of two years and six months’ imprisonment and applying a credit of 45 per cent (for your guilty plea and those personal circumstances) leaves a notional end sentence of one year and five months’ imprisonment.
Non-custodial sentence?
[68] I must not impose a sentence of imprisonment unless no other sentence would be consistent with the purposes and principles of sentencing. I “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.”38 However, these principles are subject to s 6(4) of the Misuse of Drugs Act, which provides a presumption of imprisonment in cases of supply and offer for supply of a Class A drug such as methamphetamine. As I have already noted, the Court in Zhang noted that the presumption will only be displaced in relatively exceptional cases.39 Such cases may include where the offender has accepted responsibility for the offending by entering a guilty plea and has real prospects of rehabilitation.40
[69] I note that the Court in in Zhang after applying credits for Ms Crighton’s personal circumstances, observed in a preliminary way that her situation was one where a sentence of intensive supervision would have likely been appropriate, given her personal circumstances and rehabilitative prospects.41
[70] Home detention or community detention is not a possibility due to the unavailability of a suitable address.42 The pre-sentence report recommends a sentence of intensive supervision, in order to provide oversight and support with special
38 Section 16(1).
39 At [55].
40 At [55]; see R v Hill [2008] NZCA 41.
41 At [202] (however, further submissions were sought given she had already served eleven months’ imprisonment and been subject to five months’ post-release conditions).
42 Sentencing Act, s 80A(2).
conditions to complete an assessment for drug and alcohol counselling including a residential rehabilitation programme.
[71] The Crown submits that home detention is appropriate in your case, provided it would not throw a significant barrier in the way of your rehabilitation. Your counsel suggests a term of community detention coupled with intensive supervision, without electronic monitoring. However, in my view community detention cannot be imposed without an address for an electronically monitored curfew.43 Your lawyer, Mr Vesty, submits that intensive supervision is the best vehicle for ensuring you receive assistance for your drug addiction issues.
[72] While your offending was serious and calls for a deterrent sentence, I am of the view that community detention coupled with a term of intensive supervision would have been the appropriate sentence had an address been available. I do not consider the unavailability of an address means that you should therefore be sent to prison to the detriment of your rehabilitation, your relationship with your son, and your reintegration into the community. By a narrow margin, I consider that the sentencing principles can be met by a longer sentence of intensive supervision. You pose a low risk of serious harm in the community, but that risk increases if you are not supported to address your substance abuse issues and significant trauma underlying those issues. A rehabilitative sentence in your case is more likely to be protective of the public in the long term by reducing your risk of reoffending. Your rehabilitative needs are complex and will require a period of supervision of longer than 12 months.44 A long sentence of intensive supervision, with a residential rehabilitation condition, and frequent reporting to a probation officer, will not be an easy option for you.
[73] Accordingly, I will sentence you to two years’ intensive supervision with residential treatment and counselling as special conditions.
[74] Before coming to formally impose sentence on both of you I am going to deal with Ms A’s name suppression application.
43 Sentencing Act, s 69C(1)(b).
44 Section 54C(b)(ii).
Name suppression
[75] Ms A seeks name suppression under s 200 of the Criminal Procedure Act 2011 on the grounds that publication of her name will cause her extreme hardship and endanger herself and her family. Extreme hardship is said to arise out of her background, her role in the offending, her mental health difficulties, her addiction issues and the likely nature of her sentence. The threat to her or her family is said to arise out of Mongrel Mob hostility towards them. The application is supported by her psychologist’s report of Ms Fon, which I previously mentioned, and Ms A’s own affidavit dated 11 October 2024.
[76] The Crown position is that there is nothing in this application which reaches the extreme hardship threshold. The Crown says Ms A’s circumstances are not unusual and her mental health is not such that she is at risk of self-harm or suicide, or that her rehabilitation would be derailed as a consequence of suppression. In respect to endangerment of safety, the Crown submit that publication will not result in any significant increase in danger to her or her family’s safety given the gang already knows her identity.
Legal principles –– approach to name suppression
[77] This application must be determined, as I have said, under s 200 of the Criminal Procedure Act 2011 (CPA), which provides the Court may supress the identity of a defendant only if the Court is satisfied that publication would be “likely” to, among other things, cause extreme hardship to the person charged,45 or endanger the safety of any person.46
[78] The likelihood threshold is that there be a “real and appreciable possibility” that publication could lead to one of those identified consequences. The risk must not be fanciful; it must be a risk which cannot be discounted.47
45 Criminal Procedure Act 2011, s 200(2)(a).
46 Section 200(2)(e).
47 Huang v Serious Fraud Office [2017] NZCA 187 at [10]; Hawea-Edwards v R [2021] NZCA 52 at [37] citing R v W [1998] 1 NZLR 35 (CA); and NN v Police [2015] NZHC 589 at [21] (and the cases cited therein).
[79] An application under s 200 requires a two-stage analysis. In this case, the first stage requires consideration of whether the threshold of extreme hardship or endangerment of safety has been met. If it is met, the second stage requires consideration of whether the risk of extreme hardship or endangerment of safety is sufficient to displace the principle of open justice.48
[80] The victims’ views are a mandatory consideration for an application for final name suppression.49 I have been told this morning that Mr Barton’s whānau do not have an issue with Ms A having name suppression and that Ms Lane is “not particularly keen on Ms A having name suppression”, and is also aware that many people already know of her involvement. However, she does not know the details of Ms A’s personal circumstances and is happy to leave the issue to my judgement.
Extreme hardship (s 200(2)(a))
[81] The threshold of “extreme hardship” involves a cumulative evaluation of all likely hardship arising from publication.50 In Robertson v Police, the Court of Appeal observed that “hardship” meant “severe suffering or privation”,51 and the word “extreme” indicates something more than simple hardship.52 Thus, extreme hardship is a high threshold. In Robertson, the Court noted that an assessment of whether the contended hardship is “extreme” cannot take place in a vacuum and “must entail a relative comparison between the contended hardship and the consequences normally associated with the defendant’s name being published.”53 The Supreme Court has recently endorsed that approach in M (SC13/2023) v R.54
[82] There is no doubt that Ms A is already subject to considerable hardship in her life. She is mentally fragile and has significant substance abuse issues which are
48 Robertson v Police [2015] NZCA 7 at [39]–[41] citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and D(CA443/2015) v Police [2015] NZCA 541, at [10]–[12].
49 Victims’ Rights Act 2002, s 16B provides that the prosecutor must make all reasonable efforts to ensure that any views the victim has on an application for permanent name suppression of an accused or offender and must inform the court of any such views.
50 X v R [2020] NZCA 387 at [40].
51 Robertson v Police, above n 48, at [48] citing Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491.
52 At [48] (citations omitted).
53 At [49].
54 M (SC13/2023) v R [2024] NZSC 29 at [70].
ongoing. Her mental state and prospects of rehabilitation go hand in hand. She has also suffered significant trauma. Despite her circumstances she is highly motivated to rehabilitate and has actively sought help through various channels. As a result of her offending, she and her family have become increasingly isolated from their supports and community, and I note that her mother has been subject to abuse for supporting her, and her son has had other children call his mother a “murderer”.
[83] The high point in the evidence is Ms Fon’s observations in relation to name suppression that “there is a real risk that further traumatic experiences from social stigmatisation and abuses, may simply confound her trauma leading to worsening of her mental health”. However, earlier Ms Fon noted that “[Ms A] has already been named on social media and in person, [this] is likely to buffer some of the intensity of the initial fallout”.
[84] Ms Fon’s report makes clear that much of the hardship contended for is pre- existing and, in my view, there is no strong link established on the evidence between publication and hardship so as to meet the high threshold required for suppression.
Endanger the safety of any person (s 200(2)(e))
[85] There is a substantial overlap between the grounds of extreme hardship and endangerment of safety.55 There must be an evidential basis for the likelihood of endangerment.56
[86] I do not consider the material before the Court is sufficient to show that Ms A’s safety or that of her whānau is likely to be endangered on the basis that her identity is already known within the Mongrel Mob circles affected by the offending. Mr Vesty submits that Ms A and her son have already been ‘targeted’. The only evidence of this comes from Ms A’s report of verbal abuse of her mother, and the comment already mentioned to her son. This does not persuade me there is a real risk of endangerment to safety causatively linked to publication of her name.
55 R v C [2023] NZHC 1280.
56 Bitossi v R [2014] NZCA 595 at [8].
Residual discretion
[87] Having concluded that neither of the thresholds for name suppression are met, it is unnecessary to consider the residual discretion.
[88]Accordingly, the application for name suppression is declined.
Sentencing result
[89] Mr Huriwaka and Ms A, I will now formally impose your sentences. Ms A you can stand. Mr Huriwaka, there is no point in your standing as you are on AVL.
[90]Mr Huriwaka,
(a)On one charge of manslaughter, you are sentenced to seven and a half years’ imprisonment with an MPI of three years.
(b)On each of the three charges of breach of home detention you are sentenced to 12 months’ imprisonment to be served concurrently.
(c)On the seven charges of driving whilst disqualified and the charge of driving while under the influence of a controlled drug, your sentence of home detention is cancelled and substituted with a sentence of one year and nine months’ imprisonment on the charge of driving under the influence of a controlled drug, and nine months’ imprisonment on each of the seven charges of driving while disqualified, all to be served concurrently.57
57 In my oral judgment, I imposed a concurrent sentence of one year and nine months’ imprisonment on the driving charges, but later considered it more appropriate to impose this sentence, for the totality of the driving charges, on the most serious charge along with concurrent lesser sentences on the other charges. I issued a minute asking counsel to indicate if there was any objection to correction of the sentence to reflect this approach in my written decision, and counsel confirmed there was no objection.
[91]Ms A,
(a)On the charge of possession of cannabis, you are convicted and discharged.
(b)On the charge of supplying methamphetamine, two charges of offering to supply methamphetamine and one charge of accessory after the fact to manslaughter, you are sentenced to two years’ intensive supervision on standard conditions,58 and the following special conditions:59
(i)To attend and complete an appropriate intervention for alcohol and drug use including residential treatment to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(ii)To undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.
[92] I make an interim order continuing name suppression for Ms A in accordance with s 286 of the Criminal Procedure Act.60
La Hood J
Solicitors:
Crown Solicitor, Nelson
58 Sentencing Act, s 54F.
59 Section 54G(c).
60 This order was made following discussion with Mr Vesty at the hearing about the need for him to obtain instructions in respect of an appeal. In accordance with s 286, suppression will lapse if no appeal is filed within the statutory timeframe.
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