R v Huriwaka
[2023] NZHC 112
•3 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-092-2562
[2023] NZHC 112
THE KING V
TIMOTHY KAHURANGI HURIWAKA
Hearing: 3 February 2023 Counsel:
D B Stevens & C E Best for Crown S D Cassidy for Defendant
Sentence:
3 February 2023
SENTENCE OF PAUL DAVISON J
Solicitors:
Kayes Fletcher Walker, Auckland
R v HURIWAKA [2023] NZHC 112 [3 February 2023]
Introduction
[1] Timothy Huriwaka, you appear before the Court today to be sentenced having been convicted on one charge of the manslaughter1of Joshua Ikitogia, and one charge of wounding Joseph Ngamu with intent to cause him grievous bodily harm.2
[2] Both charges arise from the events occurring in Bairds Road, Ōtara on 28 February 2020.
[3] Mr Huriwaka, although the maximum penalty for manslaughter is life imprisonment, at the conclusion of this sentencing hearing today I shall impose a determinate sentence for a fixed period which will take account of both of the charges which you appear for sentence on this morning.
Background
[4]I will commence with a summary of your offending.
[5] On 10 February 2019, Bruce Ngamu made a formal statement to police in which he made a complaint about you. You were subsequently interviewed by the Police in relation to his allegations and you denied them. A week later you were remanded in custody on unrelated matters.
[6]On 18 February 2020 you were released from prison.
[7] During the afternoon or evening of 28 February 2020, you left your home address in a Honda vehicle which you had been given the use of, and went and picked up HW. Shortly before 8pm, you moved on and picked up Michael Robinson.
[8] Sometime after 8pm, you drove with Mr W and Mr Robinson to a residential property in Bairds Road Otara. There you spoke to Bruce Ngamu and in the course of your conversation you brought up the subject of his February 2019 complaint about
1 Crimes Act 1961, ss 66(2), 171 and 176. Maximum penalty life imprisonment.
2 Sections 66(2) and 188(1). Maximum penalty 14 years’ imprisonment.
you to the Police. Having spoken to Mr Ngamu you and your two associates, Mr Robinson and Mr W, departed in the Honda.
[9] You then drove with Mr W and Mr Robinson to Manurewa where you picked up DM who you needed as a driver that night in order to carry out what you were proposing to do. From there you drove to an address in Rosella Road where Mr Robinson went into the house and returned in possession of a firearm and with ammunition. Once back inside your vehicle, Mr Robinson proceeded to load the firearm with the ammunition. Shortly after you had driven away from the Rosella Road address you pulled over, and instructed Mr M to take over as the driver. You and Mr Robinson were then in the back seat of the vehicle and Mr W moved into the front passenger seat. You instructed Mr M to take you to Ōtara, and said you were going to go back to Bairds Road to obtain something from there. On the way to Bairds Road, Mr W could hear Mr Robinson operating the gun mechanism which was making a clipping sound, and it is clear that while he was doing that in the back seat with you seated beside him, the firearm was obviously visible to you and that you were well aware what it was that Mr Robinson had obtained from the Rosella Road address. You knew he had obtained a firearm and you knew he was playing with it and loading it.
[10] Upon arrival at the Bairds Road address, you instructed Mr M to turn into the driveway and turn the vehicle around so that it was in a position where it would be ready to be driven away in haste. You and Mr Robinson then got out of the vehicle and you both went into the address. Mr Robinson had taken the firearm with him and he had it concealed under his clothing. You knew that was the intention and plan. You knew he had it with him. You knew it was loaded.
[11] Having entered the property you initially spoke to Joseph Ngamu. There was talk of you going inside the house for a drink. You and Mr Robinson then started walking towards the house and when you got to the steps which led up to the deck beside the house, Mr Robinson pulled the firearm out from under his clothing and pointed it at Joseph Ngamu’s chest. Joseph Ngamu reacted swiftly and grabbed the firearm to direct the barrel down and away from his chest. As this was happening Mr Robinson pulled the trigger, shooting Joseph Ngamu in the abdomen.
[12] Ms RN ran at Mr Robinson and endeavoured to wrestle the firearm away from him. As they were struggling for control of the firearm Joshua Ikitogia ran to help R, and as he did Mr Robinson pointed the firearm at him and shot him in the chest from close range. Mr Ikitogia collapsed to the ground. R continued to struggle with Mr Robinson, and although Bruce Lee Ngamu went to her aid, Mr Robinson broke away and escaped back to your vehicle waiting in the driveway. You also ran back to your car and Mr M, who had remained in the driver’s seat, then drove the three of you away from the address and to Mr Robinson’s address in Manurewa. After some time spent at Mr Robinson’s address while you were worrying about what you should do next, you instructed Mr M to drive the vehicle back to your mother’s address and leave it and the keys there. You also gave instructions that the car was to be emptied and cleaned.
Victim impact statements
[13] I have of course read the victim impact statements and I have listened carefully to the victim impact statement read by Joshua’s mother and by his cousin who regarded him as a brother. They are heartfelt expressions of grief of the profound effects upon them and their families of the loss of Joshua, an enduring loss which can never be remedied for which you are responsible and the consequences of his death are very, very significant to them and indeed to the community. I have of course taken the contents of the victim impact statements into account in deciding the appropriate sentence to be imposed upon you.
Sentencing framework
[14] Mr Huriwaka, in sentencing you today I am required to consider and apply the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. The purposes of sentencing you, include the need to hold you accountable for the harm that you have caused by the death of Joshua Ikitogia and to his family members, and the harm you have caused to Joseph Ngamu, and to promote in you a sense of responsibility for, and acknowledgement of that harm. The sentence imposed is also intended to denounce your offending and to deter you and other members of the community from offending by committing similar offences. The sentence to be
imposed is also for the purpose of protecting the community, while also assisting you in your rehabilitation and reintegration into the community upon your eventual release at the completion of your sentence.
[15] In deciding the sentence to be imposed I must consider the gravity of your offending and the degree of your culpability. I must take into account any information regarding the effect of your offending on the victims. I must impose a sentence which is consistent with appropriate sentencing levels for similar offending of this kind, while still being a sentence which is the least restrictive outcome appropriate to be imposed in the circumstances.
[16] I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration the report prepared in accordance with s 27 of the Sentencing Act, unless satisfied there is some special reason that makes this unnecessary or inappropriate.3
[17] Mr Huriwaka, sentencing you today involves a two-stage process.4 I will start by determining a starting point by reference to comparable cases involving sentences imposed for manslaughter, which is the lead or the most serious of the two offences you are to be sentenced for. I will then apply an uplift to that starting point to take into account the charge of wounding with intent to cause him grievous bodily harm. I will then adjust that starting point to take account of any aggravating and mitigating circumstances relevant to you personally, which will involve me deciding on and applying discounts or reductions to take account of any such personal mitigating factors.
The sentencing of Mr Robinson
[18] Because of the need for consistency of sentences imposed on co-offenders, it is also necessary for me to take into account the sentence imposed on your co-offender Mr Robinson who has already been sentenced.5 Mr Robinson was sentenced on one charge of murder and one charge of wounding with intent to cause grievous bodily
3 Sentencing Act 2002, ss 8(i) and 27(2).
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
5 R v Robinson [2021] NZHC 1605.
harm to life imprisonment with a minimum period of imprisonment of 12 years and six months’ imprisonment.6
Starting point
[19] I turn to the question of the appropriate starting point for your manslaughter offending. There is no sentencing guideline judgment for manslaughter offending. That is because the offence of manslaughter encompasses such a wide variety of circumstances where unlawful acts have caused the victim’s death.7
[20] The Crown submits that a starting point of between six and seven years’ imprisonment for the manslaughter charge is appropriate in your case. Mr Cassidy on your behalf takes no issue with the Crown’s suggested starting point.
Aggravating features of the offending
[21] I consider that your manslaughter offending has the following aggravating features:
(a)serious violence involving the use of a weapon;
(b)pre-planning and premeditation;
(c)the entry onto a residential property where the offending occurred; and
(d)your failure to render any assistance.
[22] First, that the offence involved serious violence by the use of a weapon. Your co-offender Mr Robinson entered the property armed with a sawn-off firearm. You knew he was taking the firearm with him into the Bairds Road address. You and he had sat together in the back seat of the Honda while it was being driven to Bairds Road and you and Mr Robinson had clearly planned for him to take the firearm into the property for the purpose of threatening the occupants of the property. This firearm
6 At [55].
7 R v Edwards [2005] 2 NZLR 709 (CA) at [14].
was of course used by Mr Robinson to shoot Joseph Ngamu in the stomach and also to shoot and fatally wound Joshua Ikitogia. Although you did not carry or use the firearm yourself, your criminal responsibility for its use and the fatal consequences of its use is due to you participating in a criminal venture with knowledge that the firearm was to be taken into the property with the risk that it could be fired and cause death or serious injury.8 You sat next to Mr Robinson in the car while he was loading the firearm that was used against unarmed victims resulting in extreme harm and a fatality. The use of the firearm and the serious violence involved and resulting from its use is a significant aggravating feature of your manslaughter offending.
[23] Second, the offending was premeditated. You had visited the Bairds Road address earlier that evening. It seems there was something of a party or social gathering taking place so there was an assembly of people there beyond the immediate residents or occupants of the address. You left to go and obtain a firearm and ammunition before returning with the intention of the firearm being used to threaten and intimidate people present at the address. The planning that went into what happened that night was undertaken principally, it seems, by you. It was you who had the vehicle. It was you who had the issue with Mr Ngamu at Bairds Road. It was you who went and arranged for DM to be picked up. It was you who took Mr Robinson to the address in Manurewa where the firearm was obtained by him and brought back to the car. It was you who sat in the back seat with Mr Robinson en route to Bairds Road on the second occasion while he was playing with the gun in terms of loading it and clearly intending to take it with him into the property and you were directing where the car was to be parked and positioned in a getaway position. So you clearly knew that whatever happened in there was going to require you to get away quickly. All those matters you were centrally involved in so in my view your central participation and involvement in that premeditation and planning is a serious aggravating feature of your offending.
[24] Thirdly, the offending took place at and inside the property of a residential address occupied by a family. And of course it was you who had a connection with some of the occupants of that property having worked with one or other of the Ngamu
8 See Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [239], citing Chan Wing-Siu v The Queen
[1985] AC 168 (PC) at 175176.
men previously. Offending at a residential address which is home to a family, necessarily involves an invasion of the security and privacy that a residential property is expected to provide. Whichever occupants of the Bairds Road address you and Mr Robinson intended to focus your criminal enterprise and plan and attention on, because of the residential nature of the address and the number of family members and other persons present there, there was always a real risk that somebody outside the scope of your plan would become involved and seriously hurt. And in fact that is exactly what happened. The victim Joshua Ikitogia became involved when he saw R struggling with Mr Robinson and trying to take the firearm away from him and it was in those circumstances that he went to help R and seeing him approach, Mr Robinson then shot him at close range, and killed him. Joshua was someone who was apparently unknown to you and Mr Robinson, who became involved solely because he happened to be there that evening when you carried out your intrusion and attack. I therefore consider that your actions of entering a private residential property to conduct and carry out a criminal activity and an attack and the carriage of a firearm on to a private residential property to effect your purpose is a significant aggravating feature of your offending.
[25] Fourthly, you failed to provide any assistance to the victims harmed by your actions. You fled away from the scene and did nothing whatsoever to ascertain the effect of the firearm being discharged twice. You knew of course that two victims had been shot at close range, you were standing nearby, just exactly where is not entirely clear, but you were certainly close enough to know exactly what had happened and you could see and would well appreciate the seriousness of what had been done. So your failure to provide any assistance whatsoever and flee is a further aggravating feature although to a moderate degree in my view compared to the others.
Mitigating features of the offending
[26] There are no relevant mitigating features of your offending, and your counsel, Mr Cassidy, does not suggest that there are any.
Case law on sentencing for manslaughter
[27]I have read and considered the cases referred to me by the Crown.9
[28] In R v Flavell after a dispute in which he had been punched twice in the head, Mr Flavell obtained a loaded gun which was behind the back seat of his car where he had been seated when punched. He obtained the loaded gun from behind the back seat, pursued the man who had punched him, pointed it at him and fired it in close range. The victim died as a result. Mr Flavell fled the scene. In that case, a starting point of seven years and six months’ imprisonment was adopted.10
[29] Your offending is similar to that of Flavell in that a firearm was used at close range, having deliberately confronted the victim with the firearm. However, in your case a significantly greater level of premeditation was present in the planning that had gone into your arrival at Bairds Road and your intrusion on to the property. You and Mr Robinson left the Baird’s Road property in order to go and get a firearm to be used to intimidate the victims and you returned to the Bairds Road address for that purpose. Provocation of the kind involved in the punching of the offender in the case of Flavell which obviously was not provocation which warranted his response, but was not present in the situation of your offending, there had been no violence offered to you or Mr Robinson at any time by anyone at the Bairds Road address prior to the production of the firearm and its use and the tragedy that followed. In my view that makes your offending more serious than the offending in Flavell.
[30] In R v Christie the offender was convicted of manslaughter after shooting his brother with whom he had some dispute. The victim and some other siblings were working outside the house in a garage when the victim was heard calling out “that fella’s got a gun”. The victim ran out of the garage and followed his brother Mr Christie into the house. Although intending to scare his brother by firing a shot into the ground, the offender Mr Christie shot his brother in the abdomen. Mr Christie, the offender, did not provide any assistance to his brother after the shooting. A starting point of eight years’ imprisonment was adopted in that case.11
9 R v Flavell [2014] NZHC 3373; and R v Christie HC Gisborne CRI-2003-6552, 28 October 2004.
10 R v Flavell, above n 9, at [54].
11 R v Christie, above n 9, at [32].
[31] The offending in Christie involves some features also present in your offending. These include the premeditation involved by Mr Christie, the offender, deliberately obtaining a firearm, and taking it into the circumstances of a confrontational dispute with his brother. Further, the failure to assist the victim in the Christie case is similar to your case.12 The Judge considered Mr Christie was fully responsible for the creation of the situation in which the accidental release of the discharge of the firearm occurred.13 There is therefore some similarity with your offending Mr Huriwaka as the jury’s verdict shows that they were satisfied that like the offender in the Christie case you did not intend the death of Joshua (or anyone else at the Baird’s Road address) to be a consequence of what happened. You were nevertheless found guilty of Joshua’s manslaughter.
[32] I consider that compared to those two cases, your culpability is somewhat lessened by the fact that you yourself did not hold the firearm or discharge the firearm to cause the fatal wound.
[33] Having regard to all of the circumstances of your offending and the comparable manslaughter cases referred to, I consider an appropriate starting point of seven years’ imprisonment for your manslaughter offending is appropriate.
[34] However I now turn to consider the appropriate starting point by reference to the case of R Taueki as a cross-refence or cross-check.
[35] The case of R v Taueki sets guidelines for sentencing in cases where the offender has caused grievous bodily harm with intent to cause grievous bodily harm.14 In R v Tai, the Court of Appeal confirmed that in cases where manslaughter involved serious violence, the Taueki factors and sentencing bands may be relevant and provide assistance to a sentencing court.15 Mr Huriwaka I consider your case to be one where Taueki is of some assistance due to the violent nature of the offending where serious injury was a foreseeable outcome.
12 At [9] and [12]–[15].
13 At [31].
14 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
15 R v Tai [2010] NZCA 598 at [11][12], citing R v Jamieson [2009] NZCA 555 at [34].
[36] In Taueki the Court of Appeal set out three sentencing bands which correspond to or relate to the severity of the offending in question by reference to aggravating features.16
[37] I consider that the following aggravating features of your offending which contribute to the seriousness of your conduct and the criminality are: the serious violence by use of a weapon; the significant degree of premeditation and planning; the serious injuries suffered by the victims; and the offending taking place at a residential address where other people were known to be present. Having identified four aggravating factors, your offending would fall at the low end of band three or towards the upper end of band two. However I consider that your offending most appropriately falls within band two of the Taueki guideline,17 thereby attracting a penalty of between five and 10 years’ imprisonment. Taking into account that the injury caused resulted in death, I consider your offending falls towards the upper end of band two attracting a starting point of around seven years in respect of the manslaughter charge. So having undertaken that cross-check, that is the starting point I consider appropriate in respect of the manslaughter charge.
Uplift for remaining charge
[38] I now turn to consider the appropriate uplift of that starting point to take account of the charge of wounding with intent to cause grievous bodily harm. As I have said, the Court of Appeal’s judgment in Taueki is the relevant guideline judgment for this charge.
[39] The charge of wounding with intent to cause grievous bodily harm has a maximum penalty of 14 years’ imprisonment.18 The Crown submits a starting point of seven years’ imprisonment for this charge on a standalone basis is appropriate. The Crown submits your offending falls within band two of Taueki by reference to the factors identified in that case. Mr Cassidy on your behalf takes no issue with the starting point of seven years suggested by the Crown.
16 R v Taueki, above n 14, at [34].
17 At [31].
18 Crimes Act, s 188(1).
[40] As I have just said I consider your offending contains four aggravating features, namely: the serious violence by the use of a weapon; the significant degree of premeditation and planning; the serious injuries suffered by the victims; and the offending taking place at a residential address where other people were known to be present. I agree with the Crown submission that your offending appropriately falls within the upper range of band two of Taueki.
[41] Your offending was as serious, but not as culpable, as the offending in Naku v R.19 In that case Mr Naku pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. Mr Naku and his co-offender got into a taxi after consuming alcohol, cannabis and methamphetamine. During the ride Mr Naku took possession of a short-barrelled pistol that had been in a bag belonging to his co-offender. When the co-offender was not able to pay for the taxi fare, Mr Naku approached the driver’s door and shot the driver from close range. The two then ran off. The taxi driver suffered serious injury to his right shoulder, requiring surgery and continued to suffer psychologically from the trauma. Mr Naku’s offending was considered to be at the upper end of band two in Taueki and a starting point of nine years’ imprisonment was adopted and upheld.20
[42] Your offending is less serious than that in Fukofuka v R.21 Mr Fukofuka, having left a nightclub, became involved in a physical alteration. He was punched in the side of the head and fell to the ground where he was hit again. He got to his feet, went and obtained a .22 firearm. He then shot the two men that he had been fighting, the first through his right knee and the second through his right thigh. A starting point of eight years’ imprisonment was adopted and upheld on appeal.22
[43] By comparison to those cases, your culpability is in my view lesser because you were not personally in possession of the firearm, and you did not personally shoot Joseph Ngamu. However, as with the manslaughter charge, your culpability lies in the essential role you did play in the offending taking place and the circumstances which led to the shooting of Joseph Ngamu. Having regard to your role in the matter, the use
19 Naku v R [2019] NZCA 319.
20 At [11][13].
21 Fukofuka v R [2019] NZCA 290.
22 At [22].
of the weapon to cause serious injuries and the level of premeditation involved, I consider that your offending would attract a starting point of seven years’ imprisonment if you were to be sentenced for that offending on a stand-alone basis. However, it is important and necessary for the Court to stand back and have a look at the totality of your offending.
[44] Your offending looked at individually yields a combined starting point of 14 years’ imprisonment. However, taking into account the totality principle,23 I consider that the total sentence that reflects the gravity of your offending overall, and which is also proportionate to and consistent with the sentence imposed on Mr Robinson, who was significantly more culpable of course and admitted the offence of murder, is in your case a sentence of 10 years’ imprisonment.
[45] And I accordingly adopt a starting point of 10 years’ imprisonment to encompass the manslaughter offending and the wounding with intent to cause grievous bodily harm charge.
Personal aggravating and mitigating factors
[46] I turn now to deal with your personal aggravating and mitigating factors. I do that as they may relate to your offending in order to assess whether the starting point I have adopted should be further adjusted upwards or downwards in deciding the final sentence to be imposed.
Uplift for previous convictions
[47] In terms of personal aggravating factors, your 40 previous convictions between 2008 and 2020 including six previous convictions for violent offending and three for aggravated robbery warrant recognition by an uplift. It is also relevant that at the time of your offending you were on release conditions as you had been released from prison only ten days previously.
[48] Both counsel agree that a modest uplift is appropriate. Mr Cassidy submits that an uplift of between three and six months’ imprisonment is appropriate.
23 Sentencing Act, s 85.
[49] I agree that some of your previous offending is directly relevant to the present charges you are to be sentenced for. I consider that an uplift of three months’ imprisonment is appropriate in light of the similarities in the previously violent offending and having been subject to release conditions at the time of your current offending. That takes the starting point as adjusted to ten years and three months’ imprisonment.
Personal circumstances
[50] As to mitigating factors, you are entitled to a discount for your personal circumstances to the extent that they inform your culpability for the offending. I have read your pre-sentence report prepared by the Department of Corrections and the s 27 cultural report which has been prepared at the request of and arrangements made by your counsel.24
[51] You were born in Whakatāne and grew up in Ōpōtiki. You are of Māori decent. When you were six years old your mother left the family where you were residing and you were left to be cared by other members of the family. You did not know your biological father until you were twelve years old. You were raised by your grandmother and uncles in Ōpōtiki. You describe your upbringing as involving “transient” living between houses. During stays at your uncles’ houses, you were exposed to drugs, alcohol and violence from a young age. You suffered repeated physical abuse between the ages of seven and 15 from your uncles who were associated with the Black Power gang. You say that as a result of the physical abuse you experienced, you developed a hatred and anger towards others which resulted in your violent offending towards others that followed.
[52] You were expelled from Ōpōtiki College at age 13 as a result of drug use and fighting. After being expelled, you started associating with the Black Power gang. By the age of 18 you had criminal convictions for drugs, theft and violence. You have used methamphetamine and marijuana extensively throughout your life as a coping mechanism, as you describe it.
24 Section 27.
[53] You are still connected to your mother’s side of your whānau and despite not being raised by your mother from when you were six years old you nevertheless refer to her with affection. Your father died in 2018 and he did not play a role in your life. He was associated with the Mongrel Mob while your uncles were associated with the Black Power gang. Although you have associated with the Black Power gang since you were a teenager, you say to the authors of the reports you are no longer a part of that gang and you wish to have no further involvement in gang life. You have recently taken steps to dissociate from the gang and gang culture by requesting prison authorities that you be removed from the mainstream prison and into segregation to make it easier for you to disassociate with other gang members. You have a young son with your current partner, with whom you maintain a de facto relationship notwithstanding your time in custody. You also have a daughter who is now 14 years old as a result of a previous relationship. Your former partner and your daughter reside in Australia and you state that you wish to restore your relationship with your daughter, notwithstanding that you have not seen her or had anything much to do with her since she was very young.
[54] As regards your current offending you say that you are genuinely sorry for your actions and the harm you have caused to the victims and their families. You say that you wish to make things right for them. There is of course nothing you can do and nothing you can say that would take back what you have done or in any way reduce the gravity of the effect upon them of what you have done.
[55] I consider there is a causal nexus between your dysfunctional and violent upbringing as a child and your subsequent use and addiction to drugs including methamphetamine, and also your association with the gang and gang membership at a young age which were matters which significantly contributed to the lifestyle and actions that were a large contributing factor to your present offending. Having regard to that background, I consider that a discount of 15 per cent is appropriate to reflect the extent to which those factors inform an assessment of your culpability for the present offending and I take into account also the attitude that you have expressed and the regret that you have expressed.
Offer to plead guilty to manslaughter
[56] Mr Cassidy says a further discount of 15 percent is appropriate to reflect your offer to plead guilty to the offence of manslaughter following the first trial.
[57] However, you did not offer to plead guilty at the first reasonable opportunity. Your offer came after the first trial had resulted in a jury being unable to reach a verdict. After discussions between counsel, you offered to plead guilty to manslaughter. The strength of the Crown case is also relevant in relation to this issue.25 While I note that the Crown were in a position to call additional evidence at your trial that was not available at the first trial, in circumstances such as this it is necessary that the Court exercise some caution and not place too much weight on that factor, that is the factor of the Crown having additional evidence that it could have called.26
[58] Taking into account the comparatively late timing of your offer of a guilty plea, I consider that an additional discount of 10 per cent to recognise that offer is appropriate and in doing so I am taking into account the responsibility for the offending that is implicit in that offer and the sense of remorse that is implicit in that offer.
[59] So from an adjusted starting point of ten years, three months, and applying the discounts that I have referred to which total 25 per cent, yields an end sentence of seven years and eight months’ imprisonment.
[60] I note the expressions of remorse that you made in the course of your interviews with the authors of the reports, the pre-sentence report and the s 27 report, and this morning I have received and read the several letters that you have written to members of the victims’ families and to the victim of the violent offending and it is clear from what you have said in those letters that you are sincere in your expressions of regret for your actions and you have developed a recognition of the damage that you have caused and the loss of life resulting from what you did and the effect of that. It also appears from the series of certificates provided to the Court by your counsel
25 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
26 Jefferies-Smith v R [2020] NZCA 315 at [45].
this morning that you have engaged positively in a range of counselling programmes while you have been in custody which address a range of subjects including anger management, parenting, relationships, taking charge of your life and how to develop effective patterns of thinking about how to live your life. And while I accept that your remorse is genuine and the steps that you have taken and are taking towards rehabilitation are positive and to your credit, I do not consider that your remorse and the steps towards rehabilitation that you have engaged in warrant a separate and discrete or additional discount to be added to the discounts totalling 25 per cent that I have allowed you and particularly the discount which recognises your offer of a plea of guilty to manslaughter which encompasses your acceptance of responsibility and regret for what you did and for what happened.
Minimum period of imprisonment
[61] Pursuant to s 86 of the Sentencing Act the Court has the power to impose a minimum period of imprisonment if it is satisfied that the standard one-third period provided for by s 84(1) of the Parole Act 2002 is insufficient for all or any of the sentencing purposes set out in s 86 of the Sentencing Act. Namely the purposes of holding the offender accountable for the harm done to the victim and the community by the offending, denouncing the conduct in which the offender was involved, deterring the offender or other persons from committing the same or a similar offence or protecting the community from the offender.27
[62] A minimum period of imprisonment imposed under this provision must not exceed the lesser of two-thirds of the sentence imposed or 10 years’ imprisonment.28
[63] I am satisfied that the standard one third non-parole period provided by s 84(1) of the Parole Act is insufficient for the purposes set out in s 86(2) of the Sentencing Act, particularly for the purpose of holding you accountable for the harm your offending caused the two victims and their families and to denounce your conduct in relation to the offending.
27 Sentencing Act, s 86(2).
28 Section 86(4).
[64] Mr Huriwaka, as I have said, you played a central role in planning and carrying out the events that led to the tragic death of Joshua Ikitogia and the serious wounding of Joseph Ngamu. It was you who had the dispute with another member of the Ngamu family. It was you who went in your car with Mr Robinson to pick up DM to act as your driver to take Mr Robinson to collect a firearm and ammunition. As I have said, it was you who directed Mr M as to where to go, how to park the Honda as a getaway vehicle and you then went into Bairds Road with Mr Robinson knowing he had a loaded firearm with him concealed under his clothing, the use of the firearm to intimidate and threaten the occupants of the Bairds Road address was what was clearly intended and the subsequent firing of the firearm and the fatal and serious injuries resulting from the shooting was always a very real risk and possibility. Although you were not carrying the loaded weapon and you did not shoot the loaded weapon to discharge the weapon and cause the injuries and death, you were at all times in close support of and allied to everything Mr Robinson was doing and as a result in my view your actions involve and attract a high level of culpability for what then occurred.
[65] I consider that a minimum period of imprisonment of two thirds of your sentence is appropriate to meet the sentencing purposes set out in s 86(2) of the Sentencing Act and I make an order imposing a minimum period of imprisonment of five years’ imprisonment on you.
Sentence
[66]Mr Huriwaka you may now stand.
[67] On the charge of manslaughter, I sentence you to a term of imprisonment of seven years and eight months.
[68] In respect of the charge of wounding with intent to cause grievous bodily harm, you are sentenced to a term of seven years’ imprisonment to be served concurrently with the sentence on the manslaughter charge.
[69] On both charges I impose a minimum period of imprisonment of five years’ imprisonment.
[70]You may stand down.
Addendum
[71] Subsequent to this sentencing hearing it has been drawn to my attention that the MPI of two-thirds imposed on the sentence of seven years’ imprisonment on the intent to cause grievous bodily harm charge equates to four years, five months and five days’ imprisonment. I accordingly amend the MPI in respect of the charge of wounding with intent to cause grievous bodily harm to four years, five months and five days’ imprisonment.
Paul Davison J
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