R v Karaitiana
[2020] NZHC 91
•7 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-096-2216
[2020] NZHC 91
THE QUEEN v
WAITOHARURU KARAITIANA
Hearing: 7 February 2020 Counsel:
G J Burston for Crown
C M Gisler and H R Hancock for Defendant
Sentence:
7 February 2020
SENTENCING NOTES OF THOMAS J
Introduction
[1] Mr Karaitiana, you pleaded guilty following a sentence indication on charges of aggravated burglary1 and wounding with reckless disregard.2
[2] I indicated an end sentence of three years and four months’ imprisonment, with consideration yet to be given to several matters including a s 27 cultural report3 and a pre-sentence report.4 You pleaded guilty on 2 December 2019 to this indication and were given your first strike warning.5
1 Crimes Act 1961, s 232(1)(a); maximum penalty 14 years’ imprisonment.
2 Section 188(2); maximum penalty 7 years’ imprisonment.
3 Sentencing Act 2002, s 27.
4 Section 26A.
5 Sections 86A(36) and 86B.
R v KARAITIANA [2020] NZHC 91 [7 February 2020]
[3] Although an indication has already been given, I need to repeat many of the comments I made to explain the sentence I am going to impose.
Offending
[4] Shortly after midnight on Saturday 15 June 2019, you and your co-offender travelled to the victim’s address in Stokes Valley, each armed with pistols. Your pistol at least was loaded. The doors to the property were locked. The victim was asleep in a bed next to the kitchen. You and your co-offender forced the kitchen door open, entered the property and confronted the victim. Your purpose was to obtain money from the victim that he was said to have owed.
[5] After sitting up in his bed, the victim was punched in the face by your co-offender. You then grabbed the victim by his t-shirt. Somehow your pistol discharged and shot the outside of the victim’s left knee. The Crown accepts the discharge was accidental.
[6] Your co-offender then rummaged through the victim’s drawers while you briefly detained the victim in the lounge area. The victim shoved you into the kitchen and escaped out the kitchen door, before telephoning the police from a neighbouring address.
[7] The victim sustained an injury to the side of his left leg and his wallet and phone were stolen. The wallet contained $460 cash and the phone was valued at approximately $200.
Your circumstances
[8] You were 20 years old at the time of the offending and are now 21. You have a partner and have recently became a father. You and your partner are expecting another child in August.
[9] You have four previous convictions arising from events in March 2019, which involved careless driving and resisting police. You were fined and ordered to come up for sentence if called upon.
Starting point
[10] The first step is to determine what is called the starting point. There are no sentencing guideline judgments for aggravated burglary, although I have regard to the Court of Appeal’s judgment in R v Mako, which sets out guidance for sentencing on aggravated robbery.6
[11] I have assessed your culpability holistically because the accidental discharge of your firearm, which comprises the wounding charge, forms part of the aggravated burglary.
[12] In setting the starting point, I have taken into account the following aggravating features of your offending:
(a)Home invasion7 – Although entry to a property is always an element of aggravated burglary, this was a private dwelling house entered during the night while the victim was asleep and you gained entry by force.
(b)Multiple offenders8 – Your offending is aggravated by the presence of your co-offender.
(c)Actual violence/use of a weapon9 – Although presence of a weapon is an element of your charge of aggravated burglary, I take into account that both you and your co-offender were armed with firearms and your firearm at least was loaded. The presence of a loaded firearm increases the risk of accidental (and even potentially fatal) injury, as in fact occurred here. The victim was also assaulted, although not by you.
(d)Premeditation/planning10 – You entered the victim’s home intending to collect a debt, which suggests at least some premeditation. I accept,
6 R v Mako [2000] 2 NZLR 170 (CA).
7 Sentencing Act 2002, s 9(1)(b).
8 R v Mako, above n 6, at [37]
9 Sentencing Act 2002, s 9(1)(a); and R v Mako, above n 6, at [39].
10 Section 9(1)(i); and R v Mako, above n 6, at [36].
however, there was not an extensive degree of planning and it was relatively unsophisticated.
(e)Value of property stolen11 – The items stolen were of a relatively modest value and this factor does not weigh heavily on the starting point.
(f)Victim impact12 – The victim impact statement records the victim underwent surgery on his leg to remove the bullet and his walking is still a little affected. He had been about to start a new job as a truck driver but had to delay his start. He expressed distress that his children could have been present, but thankfully they were not.
[13] The Crown submitted a starting point of eight or nine years’ imprisonment was warranted, comprising a starting point of between seven and a half years and eight years on the aggravated burglary charge with an 18-month uplift and a totality adjustment for the wounding charge. Ms Gisler submitted a starting point of four to four and half years’ imprisonment was appropriate.
[14] I consider that your offending is less serious than both Hay v R and R v Schuster, cases referred to by the Crown.13
[15] In Hay v R, there were three children asleep in the house and the victims were detained for about 15 minutes. By comparison, your offending occurred over a relatively short period of time and it appears little effort was put into your attempt to detain the victim in the lounge area. The offenders in Hay v R also pointed the firearm at the victims, which is not something you did.
[16] The firearm in R v Schuster was discharged intentionally, at a television and at a wall behind the victims’ bed, although no-one was injured, unlike the victim here. The lack of intention is relevant to your culpability. The gravity of your offending is more the result of stupidity than criminality. The focus of your sentence should
11 R v Mako, above n 6, at [44].
12 At [46].
13 Hay v R [2015] NZCA 329; R v Schuster [2015] NZHC 2833.
therefore be on the dangerous situation in which you put the victim by carrying a loaded firearm, and the harm actually caused when you shot him, albeit accidentally.
[17] A starting point of five and a half years’ imprisonment adequately recognises your offending.
Personal mitigating factors
[18] I now turn to consider what deductions should be made to the starting point to reflect your personal circumstances.
Section 27 report
[19] When imposing a sentence with a partly or wholly rehabilitative purpose, I must take into account your personal, whānau, community and cultural background.14 I have received a helpful and insightful report under s 27 of the Sentencing Act 2002 which addresses your personal, whānau, cultural background, the way in which that may have contributed to your offending, what whānau support will be available to you to help prevent further offending and how these factors may be relevant in respect of sentencing.15 As the Court of Appeal has recently noted,16 ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to offending.
[20] The s 27 report addresses this aspect in two ways. First, addressing your iwi’s experience of colonisation, deprivation and poverty, and secondly, providing insights into your own particular situation and its relationship to that general background.
[21] You affiliate primarily with the iwi of Ngāti Awa through your father. You and your whānau have retained an ongoing connection with your Marae. By 1865, Ngāti Awa had been:17
… pretty autonomous, economically prosperous, and actively engaged in trade and commerce … However, by the end of that year, Ngāti Awa had lost
14 Sentencing Act 2002, s 8(i).
15 Sentencing Act 2002, s 27(1).
16 Zhang v R [2019] NZCA 507, at [159].
17 Māmari Stephens Waitoharuru Karaitiana: Section 27 Cultural Report (January 2020) (“Section 27 Report”) at 8
245,000 acres of land to confiscation … While some lands were returned … Ngāti Awa was left with roughly a third of its tribal lands, with most productive and economically viable land gone.
[22] In settlement of its Treaty claim, the Crown accepted that the confiscation of Ngāti Awa tribal land had a truly devastating effect on the welfare, economy and development of Ngāti Awa. Ngāti Awa whānau often had to leave the area to seek work, usually as wage labourers as part of post-war urbanisation in the twentieth century. While there has been a gradual resurgence of tribal memory and knowledge, and the development of investments by Ngāti Awa, there are still many Ngāti Awa descendants and their whānau already disconnected from such developments.18 Post- war urbanisation in the twentieth century included the restructuring and privatisation of many of New Zealand’s large manufacturing and primary sector businesses, including forestry. Māori, including Ngāti Awa, suffered disproportionately, being excluded from the development (for example) of forestry assets and other industries, being laid off in far higher numbers compared with other sectors of the work force, leading to high unemployment, separated whānau, higher welfare reliance and associated social problems, including the growth of gang culture.
[23] As to how this has impacted on you, your father was primarily raised in the Ngāti Awa environment of deprivation. Your mother and sister describe your father as an angry person and say you share this trait.
[24] Relevant too, in this context, is the involvement of you and your whānau in gangs. Your father was a patched Mongrel Mob member with an estimated 30-plus of his nephews or cousins in the Mongrel Mob. Most of the family continues to have some association with the Mongrel Mob. You yourself were connected to the King Cobras. Mr Burston, for the Crown, says that the gang was almost certainly the root cause of your offending. There is no doubt that the prevailing attitude of the gang can be considered supportive of this type of behaviour.
[25] Both the issues of anger and your gang association are relevant to your rehabilitative needs.
18 Section 27 Report at 9.
Rehabilitation
[26] The pre-sentence report writer recommends that you attend a departmental intervention if eligible, to provide an opportunity for you to examine your behaviours and thought patterns. As far as violence in particular is concerned, you told the report writer that it was the victim who produced the firearm and started the physical altercation but, in any event, it is accepted there is nothing in your very limited criminal history to suggest you have used violence in the past which has brought you to the attention of the authorities.
[27] Recognising your anger management issues, you have indicated an interest in kaupapa Māori services to address your anger. You have recently attended some counselling for anger management, through a men’s group facilitated through Te Paepae Arahi.
[28] You have cut your ties with the King Cobras. The pre-sentence report writer observes that, although you are no longer connected with them, this association will provide a lasting legacy of anti-social associations. It is therefore recommended that there is a special condition of sentencing that you are not to associate with any member of the King Cobras gang.
[29] I agree with Mr Burston’s submission that it is essential that you continue to cut those ties. I have already referred to a matter which is coming before me this afternoon where someone in a similar position to you was given a chance to stay in the community rather than go to prison but he has continued with his gang associations, resulting in him breaching his sentence and there is now an application that he should instead be sentenced to imprisonment. Please do not repeat his mistake.
[30] You engaged with Bail Support Services on a weekly basis during the time you were on bail and the allocated Bail Support Officer worked with you to identify your motivations, positive support networks, strengths and weaknesses. You set a goal of obtaining your learner driver’s licence and NCEA Level 2 and 3 while on bail. Your weekly course started on 11 January. You are enrolled with the “Kiwi Can Do” construction/building course as a pathway to obtain employment. You are currently
on the waiting list with the next available intake in March. You have also been actively applying for jobs but have not yet been successful in obtaining employment.
[31] Your issues with literacy are as a result no doubt of difficulties you encountered while at school and the fact you left school at an early age. That you do not currently hold a driver’s licence will be a significant barrier to employment and also something which can result in further offending. I note your interest in cars and wish to enter the automotive repair industry. As the cultural report observes, the lack of consistent occupation means that you are “vulnerable to offending”.
[32] The screening tests administered as part of the pre-sentence report process places you in the moderate risk category for alcohol use and the high risk category for cannabis use. You self-referred to CareNZ for substance abuse counselling and were referred to Te Paepae Arahi, with whom you now engage on a weekly basis. Your counsellor’s letter dated 22 January describes you as genuinely motivated and committed to making lifestyle changes.
[33] You are entitled to credit for the steps you have already taken to address your rehabilitative needs, including leaving the gang, and for your willingness to continue this, something particularly commendable given your age. In this regard, your long-term partner, your child and the fact you have another on the way, your mother and whānau provide you not only with motivation but with continued support in your efforts.
Youth
[34] You are 21 years old and were 20 at the time of the offending. The courts have repeatedly recognised the ability to provide discounts for youth on the grounds that young people are more susceptible to negative influences and may be more impulsive. Long sentences of imprisonment may also have a crushing effect on young people and young people generally have a greater capacity for rehabilitation.19
19 Churchward v R [2011] NZCA 531 at [77]. See also Rolleston v R [2018] NZCA 611.
[35] Your co-offender was 37 years old and a patched King Cobra gang member. He is subject to a third strike as a result of this offending. I have no doubt you were heavily influenced by him and susceptible to his influence, given your youth.
[36] Your cultural background, youth and efforts towards, and prospects of, rehabilitation are interrelated. In all the circumstances, taking these factors together, a discount of 25 months is warranted.
Bail
[37] You have been on bail subject to a 24-hour curfew since 18 June 2019. That is a significant restriction on someone of your age, particularly without the added disincentive of electronic monitoring. It is effectively like being on a sentence of home detention. Although it appears there have been one or two breaches, I give you a discount of eight months because your compliance with those restrictions without electronic monitoring at 21 years of age is a significant achievement.
Remorse
[38] The pre-sentence report writer observed that you did not express remorse but rather displayed a sense of entitlement for being at the address of the victim on the night of the offending. Ms Gisler explains that you informed her you did not understand the questions that were being asked in this context and did not know what “remorse” means. Notably, you have issues with literacy and comprehension. You told Ms Gisler that you were very sorry for your actions. You offered to attend restorative justice but that was not possible.
[39] That is a difficult assessment for me to make in the circumstances. An offender’s background can often impact on their ability to express remorse. I accept it would have been a challenge to have attended restorative justice and you showed some courage in making the offer. However, I am not satisfied your conduct meets the level where you are entitled to a specific discount for remorse.
Guilty plea
[40] You entered a guilty plea at the earliest reasonable opportunity, justifying a further 25 per cent discount. This results in a sentence fractionally over 24 months’ imprisonment. Sentencing is not, however, a mathematical exercise and I am satisfied that an overall sentence of 24 months’ imprisonment appropriately reflects the offending and your personal circumstances.
Home Detention
[41] That brings me to consider whether a sentence of home detention will meet the purposes and principles of sentencing in your particular case.
[42] The Crown agrees that a community-based sentence may be appropriate. The pre-sentence report recommends home detention, saying that, given your age, very limited criminal history and apparent strong community support, a custodial sentence would likely have an overall negative impact on you. The pre-sentence report suggests a combination of home detention and community work (the latter with an agency) stands a greater chance of a positive outcome than a sentence of imprisonment. I accept that submission.
[43] In my assessment, a combination of home detention and community work is the least restrictive outcome that also satisfies the purposes and principles of sentencing.
Result
[44] Mr Karaitiana, please stand. Mr Karaitiana, on the charges of aggravated burglary and wounding with reckless disregard, I sentence you to:
(a)11 months’ home detention at the address and on the standard conditions and special conditions (including post-detention) recommended in the pre-sentence report. You are also to be referred to appropriate courses to address literacy and assistance in obtaining your driver’s licence.
(b)200 hours of community work via a community work agency.
(c)Reparation of $330 (which is one-half of the victim’s loss of $660), at the rate of $20 per week.
[45] Now, the community work is a substantial amount but I have reduced the period of home detention. It is important that you have something to do while you are on home detention.
[46] You are very fortunate in the support you have from whānau. Please take advantage of that and please do not waste this opportunity.
[47] Finally, I have a Registrar’s report in relation to fines. As I previously mentioned, they are all related to the fact that you were driving without a driver’s licence and also in an unlicensed and unwarranted car. The fines are remitted in full.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington for Crown Public Defence Service, Wellington for Defendant
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