R v Kinghazel

[2017] NZHC 2825

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2016-087-001518 [2017] NZHC 2825

THE QUEEN

v

HETARAKA TAUWHAU KINGHAZEL RICHIE-LEE JADE MATEKUARE

Hearing:	17 November 2017
Appearances:	H J Sheridan for Crown B Hesketh for Mr Kinghazel R Gowing for Mr Matekuare
Sentence:	17 November 2017

SENTENCING REMARKS OF LANG J

R v KINGHAZEL & MATEKUARE [2017] NZHC 2825 [17 November 2017]

[1]      Mr Kinghazel and Mr Matekuare, you appear today for sentence on a charge of wounding with reckless disregard for the safety of your victim.  You were also charged with a much more serious charge.  This was a charge of causing grievous bodily harm with intent to do so. That particular charge carried a maximum sentence of 14 years imprisonment, whereas the present charge carries a maximum sentence of just seven years imprisonment.  Having regard to your guilty plea in relation to the lesser charge, the Crown has elected to advance no evidence in respect of the other charge and I now discharge you each on that charge pursuant to s 147 of the Criminal Procedure Act 2011.

[2]      Your guilty pleas were entered after a sentence indication hearing.1   That was a hearing at which I indicated the sentence that would be imposed on you in the event that you entered guilty pleas relatively promptly to the lesser charge. The only aspects of the sentencing process that I undertook at that time were the fixing of the starting point and the discounts to be given for guilty pleas and youth.  I did not take into account other factors personal to you that might operate to reduce the sentences further.  For that reason you now know the principal components of the sentence that you will receive today.  My only function is to determine whether and, if so to what extent, I should reduce your sentences further to reflect additional mitigating factors that are now apparent.

The charges

[3]      Before doing that, however, I need to traverse the facts that give rise to the charges.  Although I did this in reasonable detail at the earlier hearing, I now repeat my remarks so that everybody present in Court today understands the background against which I impose these sentences. In particular, it is important that the members of the victim’s family who are present today understand the facts on which I sentence you and the reasoning process that I adopted in reaching the starting points and

discounts that were applied at the previous hearing.

1      The sentence indication is annexed to these remarks.

[4]      The charges were laid as a result of an incident that occurred on the night of

30 September and early morning of 1 October 2016. These are recorded in a summary of facts that was presented to me at the sentence indication hearing.  I am bound to sentence you on the basis of that summary.

[5]      The summary records that you are close associates and live in Kawerau. Your victim was not known to you until the night of the offending.  On the evening of 30

September, you met with other associates at a bar in Whakatane. You socialised until closing time and then in the early hours of the morning went across the street to a hotel where you continued to socialise with others. There seems to have been a reasonably

large number of people at the hotel including the victim. No doubt fuelled by alcohol, verbal sparring began between various people in the hotel.  This included the victim and his friends and members of your group. The source of the friction appears to have been beliefs about the allegiances of people in the various groups to different gangs. The verbal sparring is said to have come to a head when the victim called you or members of your group “wannabees”.  At that point the verbal altercation escalated quickly into an extremely violent incident.

[6]      The two of you, and possibly others, rushed the victim and began punching him about the head.  This caused him to fall backwards over a rail and he ended up over the rail with his head on the roof of the awning of shops below.  The summary records that Mr Matekuare then grabbed the victim and pulled him upright.  He then punched the victim’s head and face area on three occasions. This caused the victim to fall back over the rail and to lie on the roof of the awning.  You and one other then climbed over the handrail and onto the roof where you continued to kick, punch and stomp the victim on numerous occasions. He did not fight back or offer any resistance to what was happening to him.  Indeed, he appears to have been unconscious or in a virtually unconscious state.  The summary records, however, that at one stage whilst this was going on he appeared to attempt to crawl away from you in order to escape the beating that he was receiving.

[7]      The summary of facts then goes on to record:

The attack on the complainant continued with multiple punches and kicks from all defendants to various parts of the body forcing the complainant closer and closer to the edge of the roof.

The nature and force of the assaults continued until the complainant was forced over a 16.5 centimetre lip on the edge of the roof resulting in him falling to the ground.

The complainant’s head and back took the full impact of the fall onto the cobblestoned pavement beneath.

[8]      People who were in the street below observed the victim fall to the ground. They immediately began rendering assistance to him.  Some of the people who were upstairs in the hotel, including you, then ran downstairs and out to the front of the hotel where the victim and those attending him were gathered.   People who were around the victim told you to remain where you were because the police were being called. This had the disgraceful result of causing you and others to attack members of the public who were assisting the victim. You and others were kicking and punching those persons until the police arrived and arrested you.

[9]      The outcome for the victim has been extremely serious.  He was initially in a highly unstable and critical condition in hospital.  There was a high risk in the initial stages that he was going to die.  He spent five weeks in an intensive care unit where he was in a coma on life support and breathing through a tube.  On several occasions his  family were called  to  his  side  because the  medical  professionals  who were attending him were of the view that he was unlikely to survive.

[10]     Once the victim became stable, he was moved to a high dependency unit where he remained in a critical condition for a lengthy period. Some time later he was moved to a residential brain rehabilitation unit for ongoing treatment.  The summary records that, in terms of physical injuries, he has suffered a severe traumatic brain injury, as well as diffuse axonal injury and an acute subarachnoid haemorrhage.   He also received skull fractures, hip fractures, a laceration to his liver and numerous complications arising out of treatment.

[11]     I have also had the benefit of receiving a detailed, thoughtful and measured statement by the mother of the victim.  She describes in detail the trauma that the family went through when they were initially called to the hospital to see their son in

such a grave condition.  They then had to live through the next few weeks when they did not know whether he would live or die.  They remained by his bedside for much of the time because of that fact. They have then lived with him through the trauma of rehabilitation. His recovery has been extremely slow. He remains in a situation where for the most part his needs need to be provided by others. Whether, and to what extent, he will ever recover is still not known.

[12]     The terrible thing about head injuries is that the ultimate prognosis may not be known for many years.  What is a matter of absolute certainty, however, is that for a very long time, if not for the whole of his life, your victim is going to have grave issues in dealing with everyday life as a result of the injury that he suffered on this night of madness.

[13]     I was also required in respect of you, Mr Kinghazel, to provide a sentence indication in respect of a charge of conspiring to pervert the course of justice.  This charge was laid as a result of information that the police gathered after they obtained a warrant to intercept  your communcations.   This led to the police discovering communcations between you and others about the fact that witnesses were talking to the police and the actions you should take as a result of that.  You were commending those who had lied to the police, and expressing your dissatisfaction with those who had talked to the police.

[14]     In addition, you discussed a specific witness who had given a statement to the police that identified you as having been involved in the assault. You saw this person as a weak link who might damage your chances of defending the charges at trial. The summary records that you, Mr Kinghazel, said that you were going to tell this witness and others that he should not go back to the police and make any further statements and that you would call another witness and tell her not to tell the police anything at all.

[15]     When the police spoke to you, Mr Matekuare, you told them that you had punched the victim three times whilst on the balcony. You acknowledged that at least one punch at hit the complainant’s face or head, but you declined to comment further about what had happened.  When the police put to you some of the discussions they

had intercepted on cellphones, you conceded that you had been partially on the roof or awning and had kicked the victim, but that this was all you could remember.

[16]     When the police put intercepted communications to you, Mr Kinghazel, you acknowledged reasonably fully your part in the assault. When questioned further, you made full admissions about it and you also acknowledged telling witnesses not to talk to the police.   You expressed a degree or remorse for what had happened at a reasonably early stage.

Starting point

[17]     Against that background, I was required to set a starting point for the sentence that I was required to impose on you in respect of this offending. That needed to take into account all of the relevant aggravating factors of the offending.

[18]     The charge of wounding with reckless disregard for the safety of another does not require the perpetrator to have any specific form of intent.  Rather, it requires a defendant to appreciate the risk of physical harm occurring to the victim and proceeding to inflict injury notwithstanding that knowledge.

[19]     There are numerous aggravating factors about this offending.  These include the fact that there were multiple attackers operating in unison.  The victim was in a vulnerable position from an early stage because he was injured as a result of the blows that he received, and the attack ultimately left him with extremely serious injuries.  I accepted the Crown’s submission that these factors placed the offending at the very upper end of its type.

[20]     I also acknowledged, however, that it is likely that, although you appreciated the risk that the victim might be injured and indeed might fall from the roof when you attacked him on the awning, nevertheless you may not have appreciated the likely extent of his injuries. In other words, you did not know that he could have been injured as severely as he ultimately was.  For that reason I stepped back from the maximum starting point of seven years imprisonment and selected a starting point of five and a half years imprisonment in respect of you both.

[21]     So far as you were concerned, Mr Kinghazel, I considered that an uplift was required to reflect the charge of conspiring to pervert the course of justice.  Any attempt, or agreement, by persons involved in offending to interfere with the criminal justice process needs discrete recognition. It is obviously viewed sternly by the courts. On its own it would justify an uplift of at least one year’s imprisonment.  Having regard to totality principles, however, I restricted the uplift to one of six months.  For that reason, I ended with a starting point of five and a half years imprisonment in respect of you, Mr Matekuare, and six years imprisonment in respect of you, Mr Kinghazel.

Aggravating factors

[22]     I then needed to consider the extent to which I needed to increase and decrease the sentence to reflect aggravating and mitigating factors that relate to you personally. These are factors that have nothing to do with the actual offence that you committed.

[23]     Mr Matekuare, you have some previous convictions, but they are of no real moment.  Mr Kinghazel, you do not.  I proceed on the basis, as does the Crown, that there is no uplift required to reflect aggravating factors personal to you.

Mitigating factors

[24]     The remaining step in the sentencing procedure is to determine the extent to which I should reduce the sentence to reflect mitigating factors personal to you both.

[25]     As I said, I acknowledged at the sentence indication that a discount of 25 per cent would be appropriate in respect of you both to reflect your guilty pleas. Although these did not come early in time so far as the criminal justice process is concerned, they were entered immediately after the Crown indicated it would accept a guilty plea to the lesser charge. As you now I am sure appreciate, it would have been open to the Crown to proceed to trial on the greater charge if it wished to do so.  You should consider yourself very fortunate that the Crown has proceeded to accept guilty pleas on the lesser charge.

Mr Kinghazel

[26]     So far as Mr Kinghazel was concerned, I said that I would apply a discount of around 15 months, or 20 per cent, to reflect his youth and lack of previous convictions. It now transpires that I may have been a little generous in that regard because I was proceeding under the influence that, like another of your co-offenders, you were 18 years of age at the time of the offending. Having now received the pre-sentence report I see that you were 20 years of age at the time of offending.  This means that you would ordinarily be dealt with differently than an 18 year old, but having given the sentence indication I intend to stick with it even though that fact is now somewhat different.

[27]     I now need to consider the extent to which I should reduce your sentence further to reflect other mitigating factors.

[28]     The first of these is remorse.  You have indicated your remorse and did from an early stage. The issue becomes slightly clouded because of comments made in the pre-sentence report to the effect that your remorse seems directed more to your own position than to that of your victim.  You were also said to have somewhat limited insight into your offending.  That, however, may be a product of your relative youth, and I do not propose to give it significant weight. You have also shown that you have held down very good employment and that the chances of your being employed again upon your release from prison are very high.

[29]     As against that, you clearly have issues with alcohol, and these appear to have interfered in your ability to comply strictly with the terms of your bail. That is a matter you are going to need to address.   Clearly alcohol was a significant factor in the circumstances leading to your offending on this occasion.  If you do not address the issue of alcohol, there is a risk that you will be back before the courts again.  If you come back before the courts on another charge of violence, then I am sure you appreciate that the courts will take a very dim view of the fact that you have reoffended in that way.

[30]     I also am prepared to give you credit for the fact that you wished to enter into restorative justice discussions with the victim’s family. Ultimately they elected not to

participate in those and that is entirely understandable.   It can be extraordinarily stressful for victims and their families to come face to face with the people who have perpetrated such terrible harm upon them.  Nevertheless, you are entitled to a degree of credit for your efforts in that regard.

[31]     Finally, you have offered to make an emotional harm payment to the victim of your offending.  You cannot make any payment immediately, because you are currently unemployed and about to serve a sentence of imprisonment.   You have, however, offered to make payments in the sum of $20 per week up to the sum of $3,000 once you obtain employment upon your release. I have to give that factor recognition because I have accepted that your chances of being employed once you are released from prison to be high.

[32]     I need to temper the discount I give you against the fact that I have already indicated I will provide a discount of 15 months to reflect your youth.  I propose to reduce your sentence by a further four months to reflect the mitigating factors to which I have referred.

Mr Matekuare

[33]     Mr Matekuare, I am now in a position to consider the extent to which I should reduce your sentence further to reflect mitigating factors. The first of these is that you were the person who initiated the restorative justice process.   Although that was ultimately not successful, and indeed the relevant authorities could not contact you because you had lost your cellphone, you are entitled to some credit for that.

[34]     I am also hampered slightly by the fact that I do not have a pre-sentence report in respect of you.  You have waived the requirement for a pre-sentence report and, in any event, you have provided a number of references, together with a letter of remorse. I think that this material tells me a reasonable amount about you, and I am able to sentence you on the basis of the material that I now have.

[35]     You also have a very good work record.  You have held down steady jobs in the past and your employers speak highly of you, as do all members of your family.  I consider that factor needs to be given concrete recognition.

[36]     In addition, you have now sold your motor vehicle, and the proceeds of sale have been lodged into your counsel’ s trust account.  That sum, which amounts to

$3,000, is to be paid today to the Crown and will form the basis of an emotional harm payment that I direct is to be paid to the victim of your offending forthwith. Of course, no amount of money can ever restore what your victim and his family have lost.  The real benefit of it is that you have given up something of value to you, namely your vehicle, and have given the proceeds to your victim as a token of your acknowledgement of the suffering that you have caused him.

[37]     Taking those matters into account, together with the expressions of remorse in your letter, I propose to reduce your sentence further by seven months.

Sentence

[38]     Mr Kinghazel, on the charge to which  you have pleaded guilty,  you are sentenced to three years three months imprisonment.

[39]     Mr Matekuare, on the charge to which you have pleaded guilty, you are sentenced to three years eight months imprisonment.

[40]     Stand down.

Addendum

[41]     In case it is not clear from the above remarks, I have directed that both defendants are to make an emotional harm payment to the victim of their offending. As recorded above, in the case of Mr Matekuare the payment is to be made in full today.  In the case of Mr Kinghazel, it is to be made at the rate of $20 per week up to

the sum of $3000 once he is released from prison and has obtained employment.

Lang J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT

2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

THE QUEEN

v

CRI-2016-087-001518 [2017] NZHC 2173

ANARU KAREKARE HETARAKA TAUWHAU KINGHAZEL RICHIE-LEE JADE MATEKUARE

7

7 September

Hearing:  7 September 2017

Appearances:              R W Jenson for Crown

M Simpkins for Karekare
S P Whitehead (on behalf of B Hesketh) for Kinghazel
R Gowing for Matekuare

Sentence:  7 September 2017

SENTENCE INDICATION OF LANG J

[1]      Mr  Karekare,  Mr  Kinghazel  and  Mr  Matekuare  face  charges  of  causing grievous bodily harm with intent to do so and, in the alternative, wounding with reckless  disregard  for  the  safety  of  the  victim.    In  addition,  Mr  Karekare  and

Mr Kinghazel face a separate charge of conspiring to pervert the course of justice.

[2]      All three defendants have sought a sentence indication on the alternative charge of wounding with reckless disregard for the safety of another.   The Crown has indicated that, in the event that guilty pleas are entered to that charge, it will not proceed with the principal charge of causing grievous bodily harm with intent to do so.

[3]      The trial has been set for April 2018.   I record that the sentence indication hearing has been arranged as a matter of urgency because counsel wish to have the opportunity to discuss the option with their clients that they enter guilty pleas to the lesser charge.  I record also my appreciation to counsel for the fact that they had been able to file detailed submissions at very short notice.

[4]      So that the defendants understand the position, a sentence indication is an indication of the sentence that the Court would impose in the event that guilty pleas were entered to the lesser charge in the near future.   Should the indication not be accepted by any or all of the defendants by the prescribed date, it will be of no further force or effect.  Should the defendants proceed to trial and be found guilty, they will be sentenced by the trial Judge in accordance with the facts as he or she finds them to be. In that event of course the Crown would continue with the more serious charge of causing grievous bodily harm with intent to do so.

The offending

The wounding charge

[5]      The wounding charge arises out of an incident that occurred in the early hours of 1 October 2016. The summary of facts prepared in anticipation of today’s hearing, and for that purpose only, records that the three defendants are close associates who live in the Kawerau area.  The victim of their offending was not known to them prior to the incident giving rise to the charge.

[6]      On the evening of 30 September, the defendants met other associates at a bar in Whakatane.  They remained there until closing time and then went across the road to a hotel where the three defendants continued to socialise.  The victim also joined them in an upstairs area which appears to have functioned as a lounge or social area for people living or staying at the hotel.

[7]      Relationships between all present at the hotel appear to have been amiable until about 3.20 am. At that point, no doubt fuelled by alcohol, a verbal altercation occurred between the defendants and the victim and possibly others. This appears to have arisen as a result of their allegiance to gangs in the area.

[8]      The victim is said to have told the defendants that they were “wannabes”. This caused the defendants to attack the victim.  The summary of facts records that they rushed the victim and began punching him about the head.  This caused him to flip backwards over a rail, and he ended upside down with his head on the roof of the awning of shops below.

[9]      Mr Matekuare is said to have grabbed the complainant and pulled him upright. He then punched the complainant’s head and face area on three occasions. This caused the victim to fall back over the rail and onto the roof in an unconscious state.  The defendants then climbed over the handrail and onto the roof where they continued to kick, punch and stomp the victim on numerous occasions.  The victim did not fight back or offer any resistance, and appears to have been unconscious, or virtually unconscious, by this stage.   The summary records, however, that at one stage he

appeared to attempt to crawl away from the defendants in order to escape what was occurring.

[10]     The summary then records:

The attack on the complainant continued with multiple punches and kicks from all defendants to various parts of his body forcing the complainant closer and closer to the edge of the roof.

The nature and force of the assaults continued until the complainant was forced over a 16.5 cm lip on the edge of the roof resulting in him falling to the ground.

The complainant’s head and back took the full impact of the fall onto the cobblestoned pavement beneath.

[11]     People on the street below saw what was going on.  They stopped to render assistance to the victim.  Those on the balcony above, including the defendants, then ran downstairs and out to the front of the hotel.  Members of the public who were attending to the victim told the defendants to remain where they were because the police were being called. This caused some of the defendants and others in their group to attack two members of the public who were assisting the victim.   They were punching and kicking these persons until the police arrived and arrested the defendants.

[12]     The victim has suffered extremely serious injuries as a result of the incident. He was initially in a highly unstable and critical condition, and there was a high risk he would lose his life.  He spent five weeks in an intensive care unit where he was in a coma on life support and intubated.  On two occasions his family were called to the hospital because the medical professionals were of the view that it was unlikely that he would survive.   He was ultimately moved to a high-dependency unit where he remained in a critical condition for a lengthy period.

[13]     In November 2016, the victim was moved to a brain rehabilitation unit for ongoing treatment. The summary records that he has suffered a severe traumatic brain injury, as well as diffuse axonal injury and an acute subarachnoid haemorrhage.  He also received skull fractures, hip fractures, a laceration to his liver and numerous complications arising out of treatment.

[14]     I have also had the benefit of a victim impact statement prepared prior to today’s hearing.  This records that the complainant remains severely affected, both physically and mentally, by his injuries.  It is likely that he will remain dependent on others to a greater or lesser extent for the rest of his life.

The charge of conspiring to pervert the course of justice

[15]     The charge of conspiring to pervert the course of justice was laid as a result of information the police gathered after they obtained an interception warrant in respect of communications between the defendants.    An analysis of cellphone communications between Mr Kinghazel and Mr Karekare showed that they spent a considerable amount of time discussing the fact that witnesses had talked to the police, and the actions they should take as a result of that. They apparently commended those who had lied to the police on their behalf, and expressed their dissatisfaction with those who had talked to the police.

[16]     In addition, they discussed a specific witness who had given a statement to the police that identified them as having been involved in the assault.   They saw this person as a weak link who would damage their chances of defending the charge at trial.  The summary records that Mr Kinghazel said he was going to tell this witness, and others, that he should not go back to the police and make any further statements and that he would also call the witness and tell her not to tell the police anything at all.

The defendants’ explanations

[17]     The police subsequently spoke to Mr Karekare. He claimed he was in the toilet when the complainant fell off the roof onto the street. The intercepted conversations, however, reveal that he was recorded as saying that he had been present and maybe gave the complainant “a little kick in the head”. Mr Karekare said he had seen a fight between two persons on the balcony.  He had then seen a person standing on the roof of the balcony and he had then left the balcony and gone downstairs.

[18]     The   summary  records   that   the   intercepted   communications   from   Mr Kinghazel’s cellphone showed that he made a number of acknowledgements about his involvement in the assault.  When questioned further, he made full admissions about

his involvement in the assault, and also acknowledged telling witnesses not to talk to the police.  He also expressed his remorse for what has occurred.

[19]     When the police spoke to Mr Matekuare he told them that he had punched the complainant three times whilst on the balcony.  He acknowledged that at least one punch had hit the complainant’s face or head, but he declined to comment further about what had happened.   When the police questioned Mr Matekuare about the communications they had intercepted, he conceded he had been “partially on the roof” and had kicked the complainant, but that this was all he could remember.

Starting points

[20]     Against that background it is necessary to set a starting point on the charge of wounding with reckless disregard.

[21]     As counsel acknowledge, this charge is different from charges in which a specific intention is alleged. The charge of wounding with reckless disregard does not require any specific form of intent.  Rather, it requires the defendant to appreciate the risk of physical harm occurring to the victim and proceeding to inflict the injury notwithstanding that appreciation.

[22]     The wounding charge carries a maximum sentence of 7 years imprisonment. The Crown contends that a starting point of around six to six and a half years imprisonment is warranted. It places the offending towards the upper end of offending of its type.  It points to the fact that there are numerous aggravating factors.  These include the fact that there were multiple attackers, there was a prolonged attack to the head of the victim, the victim was in a vulnerable position towards the end of the attack because he was either unconscious or virtually unconscious and the attack has left the victim with extremely serious injuries.  It says that those factors place the offending at the very upper end of its type.

[23]     Counsel for the defendants take a different view.   They concentrate on the degree of recklessness shown by the defendants.   In particular, they point out that events are likely to have occurred extremely quickly, and that any appreciation of risk

of danger to the victim was likely to have been that he would suffer less injury than was ultimately the case.

[24]     I take these submissions on board, but I am bound for present purposes by the summary of facts.   This records specifically that the combined actions of the defendants forced the victim over the edge of the roof. If the defendants were to enter a guilty plea, they would thereby acknowledge that they appreciated the risk to the complainant that this might occur.

[25]     For  that  reason,  I  accept  the  Crown’s  submissions  that  the  combined aggravating factors of this offending place it in the upper echelon of offending of its type.  I accept, however, that the defendants may not have appreciated the extent to which the complainant might be injured as a result of their actions.  Taking those factors into account, I selected a starting point of five and a half years imprisonment on the wounding charge.

[26]     The charge of conspiring to pervert the course of justice warrants discrete recognition. Any attempt to dissuade witnesses from giving evidence or cooperating in a criminal investigation needs to be viewed sternly by the courts.  On its own it would probably warrant a starting point of around 12 months imprisonment.  Had the defendants gone through with their plan and actually attempted to persuade witnesses not to give evidence or to talk to the police, the starting point would have been higher.

[27]     Having regard to totality principles, however, I propose to add an uplift of six months  to  reflect  that  factor.   This  means  that  the end  starting point  so  far as

Mr Karekare and Mr Kinghazel are concerned is one of six years imprisonment.

Mitigating factors

[28]     So far as guilty pleas are concerned, I propose to apply a discount of 25 per cent in respect of all three defendants.   I do this because the Crown has only just indicated that it would accept guilty pleas to the alternative charge, and  this is effectively the first opportunity the defendants have had to enter pleas to that charge.

[29]     So far as Mr Karekare and Mr Kinghazel are concerned, I note that they are 18 years of age and have never appeared before the courts before.  My initial impression is that they would be entitled to a further discount of around 20 per cent to reflect that factor. This would be a reduction of around 15 months.

[30]     So far as Mr Matekuare is concerned, he would not be entitled to a discount for youth because he is 24 years of age. He has some driving convictions and this may preclude him from obtaining a discount to reflect previous good character.  I accept, however, that all three defendants may be able to point to other matters in pre-sentence reports that would justify further discounts.

Time for acceptance of indication

[31]     Counsel need to seek instructions from their clients, and this may take a little time because they are at a distance from their clients.  In addition, I accept that this is an important decision so far as all three defendants are concerned.  For that reason counsel are to file memoranda no later than 3 pm on Friday 22 September 2017 to

advise the Crown and the Court whether their clients will be accepting the indication.

Lang J

Solicitors:

Crown Solicitor, Tauranga