R v Kahui

[2012] NZHC 3050

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-088-002218 [2010] NZHC 3050

THE QUEEN

v

WARUTAU TAWHANA KAHUI PARAPA FATAMAKA KAHLIN MIRATANA

Appearances: J L S Shaw for the Crown

M M Dixon for the Accused Kahui
E Te Whata for the Accused Fatamaka
S C Blake for the Accused Miratana

Date:              15 November 2012

SENTENCING NOTES OF GILBERT J

Counsel: J L S Shaw, Auckland:  [email protected]

M M Dixon, Auckland:  [email protected]

E Te Whata, Auckland:  [email protected]

S C Blake, Auckland:  [email protected]

R V KAHUI & ORS HC AK CRI 2010-088-002218 [15 November 2012]

[1]      Warutau  Kahui,  Kahlin  Miratana  and  Parapa  Fatamaka,  you  appear  for sentence today on various charges.  I will deal first with Mr Kahui.

[2]      Mr Kahui, you have been found guilty by jury of the following charges:

(a)       Count 1 – injuring with intent to injure in relation to Mr Sims.  This

offence carries a maximum penalty of five years’ imprisonment.

(b)      Count 2 – assault with intent to injure in relation to Mr Tabrum.  This

offence carries a maximum penalty of three years’ imprisonment.

(c)       Count 3 – assault with intent to injure in relation to Ms Farrell.  This

offence also carries a maximum penalty of three years’ imprisonment.

[3]      You also appear for sentence today having pleaded guilty to the following charges:

(a)      Count 5 – causing grievous bodily harm with intent in relation to Mr Thorpe.   This offence carries a maximum penalty of 14 years’ imprisonment.

(b)Count  7  –  receiving  property  valued  between  $500  and  $1,000, namely Mr Thorpe’s Blackberry cellphone.   This offence carries a maximum penalty of one year’s imprisonment.

[4]      Mr Miratana, you have been found guilty by jury of the following charges:

(a)       Count 2 – assault with intent to injure in relation to Mr Tabrum.  This

offence carries a maximum penalty of three years’ imprisonment.

(b)      Count 3 – assault with intent to injure in relation to Ms Farrell.  This

offence also carries a maximum penalty of three years’ imprisonment.

(c)      Count 5 – causing grievous bodily harm with intent in relation to Mr Thorpe.  This  offence  carries  a  maximum  penalty  of  14  years’ imprisonment.

[5]      You also appear for sentence today having pleaded guilty to Count 1, injuring with intent to injure in relation to Mr Sims.  This offence carries a maximum penalty of five years’ imprisonment.

[6]      Mr  Fatamaka,  you  appear  for  sentence  today  having  pleaded  guilty  to Count 5, causing grievous bodily harm with intent in relation to Mr Thorpe.  This offence carries a maximum penalty of 14 years’ imprisonment.

Facts

Counts 1 – 3

[7]      In the early hours of the morning the three of you, and two associates (both young persons) crossed paths with the three victims, Mr Sims, Mr Tabrum and Ms Farrell, on a suburban street in Pukekohe.

[8]      One of the two young persons, Mr Edwards, approached Mr Sims asking for a cigarette. After complying with the request Mr Sims was attacked and assaulted by Mr Edwards.  Soon after this initial assault, other members of your group, including Mr Kahui  and Mr Miratana joined  in and  began  assaulting Mr Sims.   He was punched a number of times to the head and body, before he fell to the ground.  He received further punches and kicks to his head while he lay on the ground.

[9]      Mr  Tabrum  was  also  assaulted  by  members  of  your  group  including Mr Kahui and Mr Miratana.  His jacket was pulled over his head and he was struck a number of blows to his head and body.

[10]     Ms Farrell was also assaulted and pushed to the ground.   Mr Kahui and

Mr Miratana also participated in this assault.

[11]     Mr Sims managed to run away along Dublin Street.  He was pursued for a considerable distance by three or four of your group.   He was caught as he was trying to climb a fence and dragged to the ground where the assaults continued involving further punches and kicks to his head and body.

Counts 5 – 7

[12]     The victim, Mr Thorpe, was walking alone late in the evening in Pukekohe. [13]     Your group followed Mr Thorpe some distance down Seddon Street before

Mr Kahui and one other approached him and asked if he had a cigarette or Kronic. Shortly after warning Mr Thorpe that he had to be careful as “some people have been hurt lately walking around like this”, he was kicked in the head from behind by one of the group.  Mr Kahui then joined in the attack.

[14]     Mr Thorpe managed to run onto the road where he sought protection behind a car that stopped temporarily before driving off.  The next thing Mr Thorpe recalls is waking on the side of the road and being assisted by members of the public.

[15]     As a result of the attack Mr Thorpe suffered serious head injuries including a fractured skull and a small amount of bleeding on the brain.  He was hospitalised for a week after the incident and required ongoing treatment for a number of months afterward.

[16]     I  have  received  victim  impact  statements  from  the  victims.    Mr Thorpe suffered serious injuries including a fractured skull, a cracked bone in his wrist and a haematoma on his right ear.  He suffered dizzy spells and was unable to drive for six weeks.  He describes the resulting stress on his wife and children as “huge”.  He says that the attack and the injuries he sustained have had a significant impact on his work.

[17]     Ms Farrell suffered road rash on her knees, elbow and hands and a bruise on her head where it hit the road.  She has suffered financially as she has had to take time off work to attend court.  She says that on the night the incidents happened she

was terrified and that she is still scared about being out at night and even during the day.

[18]     Mr   Sims   suffered   split   eyebrows,   severe   abrasions,   bruising   to   his cheekbones and black eyes.  He had bruising and abrasions on his left arm and to the side of his body, sore ribs and a possible mild concussion.  The injuries to his face have left him with permanently pink cheeks and a scar on his eyebrow.   He has suffered financially as he had to take two days off work, pay for a doctor’s appointment and had around $250 to $300 cash in his wallet which was stolen in the attack.

[19]     Mr Tabrum suffered severe bruising to his upper body.   He has suffered financially  as  he  has  had  to  have  time  off  work  to  deal  with  police,  provide statements and attend court.

[20]     All of the victims say they do not know why they were targeted.

Offenders’ personal circumstances

[21]     Mr Kahui, you are aged 18.  You live with your mother, your sister, your two nieces, and  your girlfriend in Pukekohe.   You  witnessed domestic violence and alcohol abuse growing up, and your father takes some responsibility for your actions. You left school at 15 and worked at stables and in market gardens, using  your income to purchase alcohol.  You are on a benefit due to being on a 24 hour curfew as part of your bail conditions.

[22]     You have not directly expressed remorse, but have indicated that you are aware of how frightened the victims, particularly Mr Thorpe, must have been at the time of the attacks. You have indicated a willingness to undertake restorative justice processes and I note that you intend to write a letter of apology to Mr Thorpe.

[23]     Key factors contributing to your offending, Mr Kahui, were your harmful use of alcohol, your associates, and your propensity for violence.  You agree that these

were contributing factors.  You have been alcohol-free for the past 12 months due to your bail conditions. You have no prior convictions.

[24]     The probation officer has assessed you as motivated to change.  He has also assessed you as having a medium risk of reoffending and that you pose a medium risk of harm to the community.  Compliance with rehabilitative programmes would reduce these risks.

[25]     Mr  Miratana,  you  are  aged  18.     You  were  raised  by  your  maternal grandmother in Pukekohe.  You now reside permanently with your mother and two half-siblings.  You left school at 16 and have worked as a permanent horticultural worker for the past one and a half years.  Since the offending, and while on strict bail conditions involving a 24 hour curfew, you have tried to remain focused on sport and other positive ways of passing time.  The probation officer considers that you have robust support systems.

[26]     At the time of your offending, you had a harmful pattern of alcohol use, engaging in binge-drinking.   You have moderated your intake significantly since then.  You have also ceased your prior daily use of cannabis and believe that you are now “on the straight and narrow”.  You are assessed as being at low to medium risk of reoffending.

[27]     Mr Miratana, you have three prior convictions.  Two are cannabis-related and one is for disorderly behaviour.  You have received three “To Come Up If Called Upon” sentences.

[28]     You  accept  the  summary  of  facts  in  respect  of  the  present  offending. Although your insight was limited by your intoxication at the time of the assault, the probation  officer  states  that  there  is  little  doubt  that  you  deeply  regret  your behaviour, and that your remorse will stay with you as you mature.

[29]     Key factors contributing to your offending were your alcohol and drug abuse, offending-supportive attitudes, criminal associates, and propensity for violence.  The probation officer was impressed by the fact that your “mother and birth mother”

accompanied you to the interview. You gave frank and unhesitant answers in front of your family and did not attempt to justify your offending.   The probation officer assesses your motivation to change as high.

[30]     Mr Fatamaka, you are aged 18 years.  You were born and raised in Pukekohe and live with your family, who are supportive of you.   You left school at 14 and enrolled in the Tuakau  Home Builders course,  an alternative form of schooling which concentrates on living skills.   You spent one year there before gaining employment in the horticultural sector as a packer.

[31]     Your father died in 2007 and you state that this triggered your bad behaviour and “don’t care” attitude.  You say that you were on the periphery of the “Cripps” gang since age eight and joined when you were older.  Your alcohol and drug use at the time of the offending registered at the extreme end on a departmental testing scale.  You were using cannabis “all day long” but have since ceased all use of illicit drugs.

[32]     You say that you are deeply sorry for the harm caused to Mr Thorpe.  You had trouble grasping the implications of your offending and had no idea of the long- term consequences of sustaining a head injury.  You feel guilty and unhappy about your behaviour.

[33]     You have three prior convictions for driving offences, which appear to have arisen from the same incident.  You were sentenced for this offending to intensive supervision   and   community   detention   and   were   subsequently   convicted   for breaching community detention three times.

[34]     A propensity for violence, anti-social associates and attitudes, and alcohol and drug issues contributed to your offending.  You are assessed as being at medium risk of reoffending and at a medium risk of harm to others.   However, in the last

10 months you have made behavioural changes.

[35]     Counsel accepts that I must impose cumulative sentences for your roles in the two attacks.  I must however ensure that the end sentence is not out of proportion to the gravity of the overall offending.

Principles and purposes of sentencing

[36]     In  sentencing  you  I must  have  regard  to  the  purposes  and  principles  of sentencing contained in sections 7 and 8 of the Sentencing Act 2002.  Your conduct must be denounced and you must be held to account for your actions.  Your sentence must contain an element of deterrence to discourage future offending both by you and other members of society.   I must assess the gravity of the offending and bear in mind the need to impose the least restrictive appropriate outcome. The sentences I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way.  I must also have regard to the need for parity between you as co-offenders.   However, I am required to take into account circumstances unique to each of you, which might render an otherwise appropriate sentence disproportionately severe.  The views of the victims, expressed above, are also relevant.

Sentencing approach

[37]     In sentencing you today, I am first required to fix what is called a starting point.  The starting point must reflect the gravity of your offending, including any relevant  aggravating  and  mitigating  features.    I  am  then  required  to  adjust  the starting point to take into account any personal aggravating and mitigating features.

[38]     The attack on Mr Thorpe was separate and distinct from the attacks 11 days earlier on Mr Sims, Mr Tabrum and Ms Farrell.  The sentences I impose today must be  cumulative  sentences  reflecting  that  separate  offending.    In  sentencing  for multiple offending, the total sentence imposed must reflect the overall seriousness of

the offending.1     Where cumulative sentences are imposed, an adjustment may be required to keep the overall sentence fair and within range.   However, I must not adjust a cumulative term downward such that the individual sentences no longer reflect the overall seriousness of the offending.

Aggravating and mitigating features of the offending involving Mr Thorpe

[39]     I begin by considering the appropriate starting point for the most serious offence which was causing grievous bodily harm with intent to cause grievous bodily harm to Mr Thorpe.

[40]     This offending involved the following aggravating features:

(a)      Significant  violence,  causing  a  skull  fracture.     Mr  Thorpe  was subjected to a vicious assault which included punching, kicking, and stomping.    I  note  that  it  is  accepted  that  Mr  Fatamaka  kicked Mr Thorpe twice in the body.   The Crown accepts that he did not attack Mr Thorpe’s head.

(b)      There were five attackers against a lone victim.

(c)      Premeditation – the attack was not wholly spontaneous.   The group followed Mr Thorpe for some distance before attacking him.

[41]     There are no mitigating features of the offending.

[42]     The Court of Appeal has set a tariff for this type of offending in three bands: (a)      The tariff for offending in Band 1 is three to six years’ imprisonment.

This band applies where there are no or few aggravating features present.

(b)      The tariff for offending in Band 2 is five to 10 years’ imprisonment.

This band applies where there are two or three aggravating features.

(c)       The tariff for offending in Band 3 is nine to 14 years’ imprisonment.

This band applies to serious offending with three or more aggravating features which in combination are particularly grave.

[43]     The Crown submits that the offending falls around the cusp of Bands 1 and 2. Generally this would attract a start point of five years’ imprisonment.   However, given that you, Mr Fatakama admitted a lesser degree of involvement, and that there is uncertainty as to the involvement of Mr Miratana and Mr Kahui, the Crown proposes a start point of four years’ imprisonment for all three of you.  I accept that the  appropriate  starting  point  is  four  years’ imprisonment  given  Mr  Fatamaka’s admitted  involvement  and  the  uncertainty  as  to  the  particular  involvement  of Mr Miratana and Mr Kahui.

[44]     Mr Kahui has pleaded guilty to receiving Mr Thorpe’s Blackberry cellphone. I  do  not  consider  it  is  necessary  to  impose  an  uplift  for  this  offending  in  the particular circumstances of this case.

Personal features

[45]     There are no personal aggravating features for any of you.

[46]     You were all aged 17 at the time of the offending.  I consider that this is a significant factor which must be taken into account in sentencing you.  The fact that you were young does not automatically qualify you for a discount but the Court of Appeal  in  Churchward  v  R2   has  recently  reaffirmed  the  rationale  for  a  youth discount.

[80]… there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults. ...

(a) the ability to plan, consider, control impulses and make wise judgements is the last part of the brain to develop;

(b) adolescents are built to take risks and it is simply part of their biology;

(c) most adolescents know right from wrong, but the environment in which risk-taking and other behaviours occur can lead to inappropriate behaviour; and

(d) adolescents are more prone to react with gut instincts and impulsive and aggressive behaviour.

[81] These neurological factors can lead to a reduction in culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions: it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development.

[47]     I consider that these factors apply in this case and that a discount of 12 months’ imprisonment is appropriate for each of you recognising that you were all only 17 at the time of this offending.  In fixing that level of discount I have regard to the Court of Appeal’s recent decision in Tuhiwai v R.3

[48]     Mr   Kahui   and   Mr   Fatamaka   both   pleaded   guilty  to   the   offending. Mr Fatamaka sought to plead guilty at the outset.  He indicated this to the Court on

4 November 2011 after he was first charged.  However, the Crown instructed that no pleas were to be taken because an additional charge of aggravated robbery would not be withdrawn.   It was only on 14 September 2012 that the Crown amended the indictment to withdraw that charge.  Mr Fatamaka then pleaded guilty on the first opportunity which was on 24 September 2012.  In my view, he is entitled to the full

25 per cent discount for his guilty plea. The Crown, fairly, accepts this.

[49]     I understand that Mr Kahui is in a similar, although not quite the same, position.  He is not entitled to the full 25 per cent discount but I allow a 20 per cent discount for his guilty plea.

The offending on Mr Sims, Mr Tabrum and Ms Farrell

[50]     The lead offence in respect of this offending is injuring with intent to injure and applies to the offending against Mr Sims, who was pursued by the offenders and

then attacked in a group assault.   In R v Harris,4  the Court of Appeal provided guidance for sentencing levels for this type of offending, again in bands:

(a)      Band 1: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

(b)      Band 2: where the injuries are moderate, sentences of up to two years’

imprisonment can be justified;

(c)      Band  3:  for  serious  injury,  sentences  from  18  months  up  to  the maximum of five years can be justified (subject to complying with s

8(c)(d) of the Sentencing Act 2002).

[51]     Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and in ss 8 and 9 of the Sentencing Act.

[52]     The offending involved the following aggravating features:

(a)      Sustained  and  significant  violence  to  Mr  Sims  who  was  initially assaulted and then pursued a considerable distance down the street and assaulted again.

(b)      Five attackers were involved.

[53]     There are no mitigating features of the offending.

[54]     Mr Miratana, you were involved in the pursuit of Mr Sims and the second assault.  The Crown acknowledges that Mr Kahui was only involved in the initial stages of the offending.

[55]     I consider that the offending falls within Band 2 and that an  appropriate

starting  point  for  Mr  Miratana  is  two  years’ imprisonment  and  for  Mr  Kahui,

18 months’ imprisonment.

[56]     I uplift this figure by six months to reflect the totality of the offending and the assaults on the other two victims, Mr Tabrum and Ms Farrell.

[57]     Again, I consider that you are both entitled to a youth discount.  I apply a six month discount for this factor.

[58]     Mr  Miratana  is  entitled  to  a  further  discount  to  reflect  his  guilty  plea. However,  this  was  made  at  the  commencement  of  the  trial.    I consider  that  a

10 per cent discount is appropriate for this.

[59]     I also consider that you are each entitled to an adjustment for the time you have spent on highly restrictive bail conditions.  You have each been subjected to a

24 hour curfew for over 400 days.   I consider that a further reduction of eight months’ imprisonment should be allowed for this.   In arriving at this adjustment I take into account the Court of Appeal’s decision in R v Aram.5     In that case the offender  had  been  remanded  on  “fairly  restrictive”  bail  conditions  for  about

18 months.  A one-year reduction was held to be appropriate for this.  In R v Potoru6

a  discount  of  six  months  was  applied  in  recognition  of  the  accused’s  positive

response to highly restrictive bail conditions over some 10 months.

[60]     What I propose to do is to allocate this credit across the two sets of offending in the case of Mr Kahui and Mr Miratana by allowing a credit of five months for the more  serious  offence  and  three  months  for  the  other  offending.    I  make  this deduction at the end because it is in effect a credit for time already served.

End sentences

[61]     Mr Miratana, I sentence you to two years and seven months’ imprisonment on the grievous bodily harm charge.  I arrive at this by taking the starting point of four years and deducting one year for your youth and allowing a credit of five months for the fact that you have spent in excess of 400 days on very restrictive bail conditions. You did not plead guilty and accordingly you do not receive any further discount for this.

[62]     Mr Kahui, I sentence you to 24 months’ imprisonment on the grievous bodily harm charge.  I arrive at this by taking the starting point of four years and deducting one year for your youth.  I make a further deduction of 20 per cent for your guilty pleas which results in a provisional end sentence of two years and five months’ imprisonment. I then deduct five months for the time spent on restrictive bail terms. I discharge you on the charge of receiving Mr Thorpe’s cellphone.

[63]     Mr Fatamaka, I sentence you to 19 months’ imprisonment on the grievous bodily harm charge.   I arrive at this by taking the starting point of four years and deducting one year for your youth.   I make a further deduction of 25 per cent for your guilty plea which results in a provisional end sentence of two years and three months’ imprisonment. I then deduct eight months for the time spent on restrictive bail terms.

[64]     I now turn to the earlier offending.

[65]     Mr  Miratana,  I  sentence  you  to  a  term  of  one  year  and  six  months’ imprisonment for count 1 namely injuring with intent to injure Mr Sims.  I sentence you on each of counts 2 and 3, being the assaults with intent to injure Mr Tabrum and Ms Farrell, to a term of imprisonment of 12 months.  These sentences are to be served concurrently.

[66]     Mr Kahui, I sentence you to a term of 15 months’ imprisonment for count 1, namely injuring with intent to injure Mr Sims.  I sentence you on each of counts 2

and 3, being the assaults with intent to injure Mr Tabrum and Ms Farrell, to a term of imprisonment of 12 months. These sentences are to be served concurrently.

Cumulative end sentences

[67]     Mr Kahui, your cumulative end sentence is therefore one of three years and

three months’ imprisonment.

[68]     Mr Miratana, your cumulative end sentence is one of four years and one month imprisonment.

[69]     Mr Fatamaka, your sentence is one of 19 months’ imprisonment.

[70]     As I have imposed a sentence of two years or less, on you, Mr Fatamaka, home detention becomes an available option which I must consider under the Sentencing Act.  It is a matter for my discretion.  Following considerable reflection I have decided that home detention is not appropriate in your case.  In deciding not to impose home detention I take into account the need for parity with your co-offenders and the fact that this was a vicious attack on Mr Thorpe with multiple offenders involved resulting in very serious injury, including head injuries.  I consider that a

term of imprisonment is the only appropriate response for such offending.

M A Gilbert J