R v Katene HC Rotorua CRI 2008-063-4495
[2010] NZHC 632
•23 April 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2008-063-004495
THE QUEEN
v
HAREOPA KATENE ERIA KATENE
Charges: Hareopa Katene:
discharging a firearm with intent to cause grievous bodily harm x1; discharging a firearm with reckless disregard for the safety of others x 1;
unlawful possession of a firearm x1.
Eria Katene:
discharging a firearm with intent to cause grievous bodily harm x1;unlawful possession of a firearm x1. Plea: Guilty
Appearances: F Pilditch for Crown
A Schulze for Prisoner Hareopa Katene
H Edward for Prisoner Eria Katene
Sentenced: 23 April 2010
Hareopa Katene:
discharging a firearm with intent to cause grievous bodily harm – 4 years 8 months’ imprisonment;
discharging a firearm with reckless disregard – 3 years’
imprisonment;
unlawful possession of a firearm – 4 months’ imprisonmentAll sentences are concurrent but the sentence of four years eight months for discharging the firearm with intent is cumulative on existing sentence.
R V KATENE AND ANOR HC ROT CRI-2008-063-004495 23 April 2010
Eria Katene:
discharging a firearm with intent to cause grievous bodily harm – 2 years 4 months’ imprisonment;
unlawful possession of a firearm – 4 months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Rotorua
Lance Lawson, Rotorua
H Edward, Rotorua
[1] Hareopa and Eria Katene, you are before the Court for sentence this morning having pleaded guilty to a number of serious offences. In your case Hareopa Katene you have pleaded guilty to discharging a firearm with intent to cause grievous bodily harm, discharging a firearm with reckless disregard for the safety of others and unlawful possession of a firearm. Eria Katene, in your case you have pleaded guilty to discharging a firearm with intent to cause grievous bodily harm and unlawful possession of a firearm.
[2] The maximum sentence for discharging a firearm with intent to cause grievous bodily harm is 14 years. It is the most serious of the offences you face. For discharging a firearm with reckless disregard the maximum sentence is seven years. The charge of unlawful possession of a firearm carries a maximum sentence of four years and/or a $5,000 fine.
[3] You will both be well aware of the background to the offending. For reasons that really have never been properly explained but seem to have their background in accusations and counter-accusations of theft between you and members of the Tuhoro family, Shannon Tuhoro in particular, the relationship between you and the Tuhoro family broke down entirely.
[4] I say at the outset that that is a terrible shame. Alec Tuhoro, the principal victim and Shannon Tuhoro’s father, is your sister’s partner. Your sister is Shannon’s mother. Eria, you and Shannon are cousins and were effectively brought up together. This dispute between the families escalated to the stage that by late September 2008 you, Hareopa Katene and Shannon Tuhoro, were exchanging abusive text and telephone messages. There was also a stand-off between you Eria,
and Shannon when you saw each other on the 27th September.
[5] Hareopa Katene, as the older man in all of this and with more life experience than Shannon and Eria, you had the opportunity to calm matters down. But you didn’t. Instead you responded to Shannon’s inflammatory text messages by threatening him. You threatened to shoot and to kill him. The threats were serious threats and they were taken seriously. Shannon spoke to his father Alec. Alec came
back from New Plymouth to Rotorua with the rest of his family because of the threats that you had made.
[6] Not only did you threaten Shannon you took a number of steps to give effect to your threats on the 27th September 2008. During the course of the day, about 3 o’clock in the afternoon, you went to the Tuhoro’s property. Mr Hareopa Katene, you told the occupant of the house on the front of the property to go out for the afternoon. You made it very clear to him that he was to leave with his family. The inference is that you didn’t want them around when you had it out with the Tuhoro’s.
They took your direction seriously and went out for a number of hours. Later, after they returned you approached them again and told them to leave.
[7] About 7.30 in the evening Alec Tuhoro, together with his wife Katarina, and their younger son Hoani arrived back in Rotorua from New Plymouth. They met with Shannon and another relative, David Tuhoro at David Tuhoro’s address. They then returned to the Tuhoro property and home. Once there Alec Tuhoro telephoned you Mr Katene to try and resolve matters. There was then a further abusive exchange on the telephone between the two of you which culminated with you telling Alec Tuhoro you were coming down to shoot him and his son. Alec Tuhoro’s response was macho and stupid, he said “bring it on”.
[8] The two of you then drove two separate four-wheel drives to the Tuhoro property. You were accompanied by three of your friends Mr Eria Katene. The two of you took firearms to the property. Hareopa Katene, you were driving the front four-wheel drive. You had a .22 rifle and ammunition. Eria Katene in your four- wheel drive you had a .22 rifle and a more powerful .308. You had ammunition for both. In addition there were a number of other weapons in the car, a wooden baton, a hammer, a Gurkha style sword, a boning knife and mallet.
[9] As you approached the Tuhoro property Mr Hareopa Katene you stopped the car, the four-wheel drive, loaded the .22, put it out the window and drove forward. When you reached the Tuhoro property you fired the firearm towards the property generally. Alec Tuhoro was waiting to the side of the driveway in Shannon’s four- wheel drive. He drove it towards you and rammed your four-wheel drive. You then
turned the .22 rifle towards him and again discharged it, this time towards him. Fortunately you did not hit him. From the evidence I heard at trial of the co-accused, it seems you did not even hit his four-wheel drive. After Alec Tuhoro rammed your father’s four-wheel drive, Eria you fired a round from the .308 at Alec Tuhoro’s vehicle in an attempt to immobilise it. The bullet went into the four-wheel drive and into the engine area. I record here that in relation to the count of discharging a firearm with intent to cause grievous bodily harm that you pleaded guilty to, the Crown accept that you did not intend to cause grievous bodily harm to anyone when you discharged the .308 and that you intended to immobilise the car. The Crown accepts that your discharge was not aimed at anyone. You are guilty of the discharge with intent to cause grievous bodily harm as a party to your father’s action of firing the .22 towards Alec Tuhoro. The fact you were prepared to use the .308 is however an aggravating factor of your involvement in that offending.
[10] When you both drove onto the Tuhoro property, Shannon was waiting at the other side of the driveway. When your four-wheel drives stopped he attacked the passenger’s side of the vehicles. The other three involved in the incident ran away without taking any further action at all. They were acquitted at trial. Eria Katene, after firing the .308 you also ran away. That left you Hareopa Katene. You drove your four-wheel drive around to the back of the house on the property. Once there you continued to fire in the direction of the Tuhoros, Alec and Shannon. Alec and possibly Shannon Tuhoro may have fired at you with one of the abandoned firearms. No-one was hit or injured by these shots. Alec Tuhoro then got into the abandoned four-wheel drive, located where you were, and drove it into the fence that you were hiding behind. He then drove the four wheel drive at you again while you were trying to aim the rifle back at him. As a result you suffered a number of serious injuries, including a broken back. The Tuhoros called the police. The armed offenders’ squad attended. They located you at the scene, injured and arrested you.
[11] You are both very fortunate that you do not face more serious charges. Someone could very easily have been killed this night. Whatever lay behind the dispute between, particularly Shannon Tuhoro and the two of you, it was not worth someone’s life. Frankly it was not worth the trouble that the two of you are now in,
and it’s not worth the breakdown in the family relationship that’s been left as a result.
[12] Whatever the rights or wrongs of the dispute, and whatever aggravation you might have received from Shannon Tuhoro in his text messages there can be no excuse for the way you responded by the two of you arming yourselves with weapons and firearms and going to the Tuhoro property to try to carry out the threat to shoot and to kill. This was very serious offending.
[13] Hareopa Katene you are 49 years old. You have a significant number of previous convictions including convictions for violence and you are at present serving a sentence of imprisonment for aggravated robbery and aggravated wounding, the charges that you were on bail for when you committed this current offending. Your explanation for the offending is that it was a culmination of events that had evolved over the period of about two months before. The probation officer heard your explanation and noted that you displayed little insight into your offending and sought to justify your actions. You seem to have the view you can take the law into your own hands to resolve issues. The probation officer says you show little empathy for the victims of the offending. It is of real concern that you apparently still blame others for the situation you are in and remain bitter over what happened. Well frankly it is time for you, your family and Alec Tuhoro and his family to stop this blaming, stop blaming each other over what happened. Whatever caused this incident, whatever happened on that night is in the past. That’s where it should stay. You now must be sentenced and dealt with for what has happened but that should draw a line under all of this.
[14] The factors identified as contributing to your offending are your propensity for violence and association with individuals who support your criminal activity together with a sense of self-justification in relation to your offending. Frankly Mr Hareopa Katene, the most positive note in the pre-sentence report, perhaps the only positive note, is that you have now acknowledged you have a propensity for violence and you have indicated a willingness to take part in counselling to address that.
[15] Eria Katene at the age of 24 years you do not have any previous convictions. You have been in a relationship for the past five years. You describe it as a constant, happy and supportive one. Your partner has obviously been disappointed and affected by your offending. As I said to counsel you appear to be a young man with promise. You have worked hard towards completing an engineering apprenticeship over a number of years. I have seen references from your employer. I have been handed another one this morning where he talks of you in a very positive way and wants to support you. There has also been a letter of support from a close friend. You also have the support of your mother.
[16] The probation officer notes you display remorse about the offending and you say you don’t hold anything against anyone and that you are sorry for your involvement. You say you have shaken hands with members of the Tuhoro family after your guilty plea and have, to a degree, made up. Because of that there was a suggestion there be a restorative justice meeting in this case. It seems that would have been supported by your aunt Katarina and by Shannon but unfortunately Alec Tuhoro declined to participate in it. It was unfortunate that he declined to participate in that meeting, which I think would have been good for both your families. But I make it clear to you that you are not penalised in any way because that meeting did not take place and I accept that you were prepared to participate and that you have offered your apology directly to the Tuhoros and that was accepted. I also note the positive comments that your aunt and Shannon have made on your behalf.
[17] But, it is the seriousness of the offending which is the determining factor in this case. While I accept you became involved in this incident very much because you felt you had to support your father you did take an active role. Earlier in the day you had been yourself involved in a stand-off with Shannon. But more relevantly you had the two firearms in your car and a number of other weapons and, of course, you used one of the firearms. You were there more than just simply in a role of supporting your father. You were an active supporter and were prepared to and did take an active role and you have to accept that.
[18] It is, however, a real shame that at your age and with what you have achieved so far that you appear in Court for sentence on these charges.
[19] In sentencing you both I am required to have regard to the purposes and principles of the Sentencing Act. The particularly relevant purposes in this case are:
a) to hold you both accountable for the harm done to the victims, the
Tuhoro family and the community by offending of this nature;
b)to promote in you both a sense of responsibility for and acknowledgement of that harm;
c) to provide for the interests of the victims;
d)to denounce the conduct that you were both involved in – it is totally unacceptable for people to resort to violence to resolve disputes, let alone to use firearms;
e) to deter you and others from committing similar offending; and f) to protect the community
[20] The following principles are relevant:
a) the gravity of the offending, including an assessment of your individual culpability;
b)the seriousness of the offending, which is indicated by the maximum penalty for it – 14 years;
c) the desirability of consistency with other sentences for similar offending; and
d) the need to impose the least restrictive outcome appropriate.
[21] Victim impact reports have been filed which record the effect of this offending on the Tuhoro family. The offending has had an effect on their family as a whole. As I have said, Katarina Katene and Shannon Tuhoro in particular have
expressed they are very sad about the effect on them and the concerns they have about the matter in the future. They would like to put it all behind them and get on with their lives but they are concerned about further violence. Katarina says she would like to do something to help you Eria and even while she is really annoyed with you Mr Hareopa Katene, she says she still loves you because you are blood and family. Shannon says he forgives you, Eria and he is depressed and heartbroken the family has been broken up by this.
[22] The Crown submit because of the aggravating features of this case a start point for sentence of between three to five years would be appropriate but a lower start point would need to be fixed for you Eria on the basis of your lesser role.
[23] For you, Mr Hareopa Katene, counsel accepts a starting point, having regard to the authorities, of between three to five years’ imprisonment is appropriate for the offending before taking into account factors in aggravation, mitigation and having regard to the totality principle and bearing in mind your circumstances.
[24] For you Eria Katene, Mr Edward submits that whatever the start point is the sentence could be structured so that an end sentence of two years or less would be appropriate with home detention or community detention available as the final sentence.
[25] In sentencing you both, and particularly having regard to consistency, I note that there do not appear to be any cases with sentences imposed under s 198(1) as the principal offence. In the case of R v Dixon[1] Potter J imposed a sentence of five years for such offending, but it was not the prime offence as Dixon was also sentenced for murder. In Dixon’s case, he had shot at two passersby and the police in what can only be described as a rampage. His offending included three attempts to shoot at a police officer and two attempts to shoot at the victim in his vehicle where the bullet lodged in the car.
[1] R v Dixon HC Auckland CRI-2003-092-026923, 27 May 2005.
[26] Guidance is also to be found from cases under s 198(2), although the maximum sentence for that offending is seven years as opposed to 14 in your case.
Perhaps the most relevant sentence comparison for present purposes is the case of R v Templeton.[2] In that case the accused were found guilty as parties under s 198(2), discharging a firearm with reckless disregard for safety and a number of other firearm offences. Although the lead charge was a less serious one, the offending had a number of similarities with your offending. The appellant and others, armed with firearms and weapons, travelled to the victim’s address to exact revenge on them.
The victim got into a car and drove it at the attackers. Volleys of shots were exchanged. At least 10 shots apparently were fired by the attackers. The victim rammed the attacker’s car. The Judge took a five year start point for the lead offender and slightly reduced start points for the two other secondary parties.
[2] R v Templeton CA460/05, 6 July 2006.
[27] The Court of Appeal considered the start point of five years was justified and observed that a start point of four and a half years for both secondary parties would have been appropriate. The final sentence after taking account of mitigating factors, of four and a half years for the lead offender was upheld and end sentences of four years and three years respectively for the other offenders was also upheld.
[28] I have also had regard to the cases of R v Abbott[3] and R v Gunbie.[4] Although Mr Edward referred to R v Taueki[5] as I discussed with counsel I do not consider that to be particularly helpful in relation to the current sentencing exercise. Taueki sets out guidelines for serious violent offending with attention on wounding with intent.
The Court also noted that the guidelines were to apply by analogy to other offences involving the infliction of serious violence. Your offending under s 198(1) does not fall under that analogy. The offence does not involve the imposition of grievous bodily harm or indeed physical harm at all, or does not need to.
[3] R v Abbott HC Rotorua CRI-2005-077-001271, 9 February 2007.
[4] R v Gunbie HC Auckland CRI-2005-044-001951, 16 May 2006.
[5] R v Taueki (2005) 21 CRNZ 769.
[29] There are two particularly aggravating factors in the present case. First, the degree of planning in that you assembled two four-wheel drives, a number of weapons, including firearms and ammunition. You tried to prepare the scene by getting the neighbours at the end of the driveway to leave. The second aggravating feature is the home invasion aspect. You went to the Tuhoro’s property in the
evening intending to catch them at home and with the intention to inflict violence on them with the use of a firearm.
[30] Mr Hareopa Katene, I deal with you first. Templeton concerned the case of discharging a firearm with reckless disregard. You have pleaded guilty to discharging a firearm with intent to cause grievous bodily harm as well as discharging a firearm with reckless disregard. You did deliberately turn the firearm towards Alec Tuhoro and discharged it. In those circumstances I take as a start point given your principal role, and the totality of your offending in this case, five years’ imprisonment. I then consider that should be reduced to take account of the conduct of the victims in this matter. There was a degree of provocation, which I emphasise does not justify your actions but it does set a background to why you acted in the way you did. You were wound up by Shannon Tuhoro in particular. There was also the action of Alec Tuhoro on the night, including ramming his vehicle into yours and particularly in your case Mr Hareopa Katene, later running you over causing serious injuries to you. Taking those factors into account, I reach an adjusted start point before personal factors of four years six months.
[31] There are, however, a number of personal aggravating features which I must also take into account. You have serious and recent convictions for aggravated robbery and wounding. You have a propensity for violence. Further, and related to that, the current offending was committed while you were on bail for the charges of aggravated robbery with a firearm, and the aggravated wounding. An uplift of 12 months is required to take account of those factors.
[32] In the case of you Eria a significant factor is your limited involvement in the offending. It is accepted by all parties, including the Crown and the Tuhoro family, that your involvement was as a secondary party to support your father. The personal aggravating features I have identified that apply to your father do not of course apply to you. But while a party to the offending, as I have said you were an active party. You brought firearms to the property to assist your father, you were prepared to use them and you did use them. In those circumstances I take as a start point for your involvement in this offending three years six months. I then also discount your offending, by four months in your case, to take account of the conduct of the victims.
Of course you were not run over or otherwise injured by the victims. That leads to a start point of three years and two months before taking account of personal features.
[33] I now turn to consider both of your personal circumstances in mitigation. In your case Hareopa Katene there are no particular personal mitigating factors. You have not got a good record you can call into your aid, quite the reverse. The significant factor in your favour is your guilty plea. It came very late, at the outset of trial however. Despite that I am going to allow a discount of 10 per cent for it. That would lead to a sentence of just under five years. Counsel has submitted some allowance should be made on a totality basis to reflect the fact you are currently serving a long sentence, some seven years six months for the other offending I have referred to and that the sentence that I am going to impose will be cumulative and follow that. In Templeton a similar submission was made. In that case it was rejected by the Court. However, in your case, I accept that there has already been uplift for your record and for your offending whilst on bail, and to avoid punishing you again and imposing a crushing sentence, I propose to allow a further reduction. The final sentence for you will be four years eight months.
[34] Eria, you are entitled to a discount for your previous good behaviour. You have no previous convictions, and have almost achieved a qualification. I am also conscious that you are, to a large degree, supported by your aunt and by Shannon. A reduction of six months for all of that is appropriate. I then allow a further discount of 10 per cent for your guilty plea which leads to a final sentence for you of two years four months. I cannot consider home detention or community detention. That is because the serious nature of the offending and your actions have led to a result that means the end sentence, even when giving you credit for all I can, is still over the two year period.
[35] Please stand. Hareopa Katene on the charge of discharging a firearm with intent to cause grievous bodily harm you are sentenced to imprisonment for four years, eight months. On the count of discharging a firearm with reckless disregard you are sentenced to three years imprisonment, and on the count of unlawful possession of a firearm, four months. All are concurrent but the sentence of four
years eight months for discharging the firearm with intent is cumulative on your existing sentence.
[36] Eria Katene on the charge of discharging a firearm with intent to cause grievous bodily harm you are sentenced to two years four months. On the charge of unlawful possession you are sentenced to four months’ imprisonment. The
sentences are concurrent. Stand down.
Venning J
Addendum
[37] As indicated when the guilty pleas were taken on 24 February 2010 the Crown does not offer evidence in relation to counts 1 (attempted murder – both prisoners) and count 3 (attempted murder – Hareopa Katene).
[38] The accused are discharged in relation to those counts accordingly.
Venning J
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