R v Laupama
[2022] NZHC 3312
•2 December 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-000937
[2022] NZHC 3312
THE KING v
HAMIORA LAUPAMA
Hearing: 2 December 2022 Counsel:
J M Marinovich for the Crown J C Hannam for the Defendant
Judgment:
2 December 2022
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The defendant, Mr Hamiora Laupama, has pleaded guilty to being an accessory after the fact to murder.1 I am now to impose sentence.
Factual basis to the offending
[2] The summary of facts is before the Court and has been accepted by the defendant as an accurate account of the events. The following is by way of summary.
1 Crimes Act 1961, ss 71 and 176 — maximum penalty seven years’ imprisonment.
R v LAUPAMA [2022] NZHC 3312 [2 December 2022]
[3] On the evening of 3 August 2022, Mr Laupama was driven to an address on South Road, New Plymouth, where he met Turanganui John (TJ) Ormsby-Turner and another person. The reason for meeting there was to pick up another associate, the victim’s brother, Jahrim Mataira, to then collectively go and “tax” someone who owed TJ Ormsby-Turner money. All are members of the Mongrel Mob, and TJ Ormsby- Turner is the president of the West Coast Chapter of the Mongrel Mob.
[4] While Mr Laupama, TJ and the other person were sitting in a car at the address, Mr Mataira and the victim arrived in the victim’s car. TJ and the other person became agitated when they saw the victim due to his affiliation with a rival gang, Uru Taha, and the fact there had been issues between the two gangs. However, given it was Mr Mataira’s house and the fact they had been around Mr Mataira when the victim had been there previously and nothing had happened, Mr Laupama believed there would be no issue.
[5] Shortly thereafter, however, Mr Laupama and the victim crossed paths at the house, at which time there was an exchange of words between the two, and Mr Laupama thought they were going to have a fight. The two walked towards one another and the victim aimed a punch at Mr Laupama but missed. TJ Ormsby-Turner moved from behind the victim and stabbed the victim once in the torso with a large black hunting knife. The other person then attacked the victim with a claw hammer.
[6] Mr Mataira intervened to stop the attack and carried the victim to the victim’s car. The victim’s partner drove Mr Mataira and the victim to the hospital, where the victim was pronounced dead.
[7] At the South Road address, TJ Ormsby-Turner then instructed Mr Laupama and the other person to get rid of their own car and several items, including their clothes and the knife. Mr Laupama drove the car to the East End Reserve, New Plymouth, where the two attempted unsuccessfully to bury the victim’s hat, before throwing the knife and items of clothing from a bridge into the Te Henui stream.
[8] Mr Laupama, on TJ Ormsby-Turner’s instructions, then drove himself and the other person back to the South Road address to pick up TJ Ormsby-Turner. The three
went directly to TJ Ormsby-Turner’s house, where they removed the items of clothing they had been wearing during the attack, and Mr Laupama was provided items of clothing from TJ Ormsby-Turner to wear. Mr Laupama’s phone was designated as the phone that would be used if a phone was required and the others’ phones were discarded. All orders are said to have been given by TJ Ormsby-Turner as the president.
[9] The three travelled to an associate’s address, where the other person took the items of clothing they had been wearing outside and burnt them. Mr Laupama and the other person then returned to TJ’s house.
[10] On 8 August 2022, police executed a search warrant at TJ’s house. The three exited the address and were arrested and taken to the New Plymouth police station. Mr Laupama was interviewed, and he provided an account of what he had witnessed on the evening in question. This included information as to the involvement of TJ Ormsby-Turner and the other person, details of the location where items were dumped by the other person and himself, and the associate’s address where the items of clothing were burnt.
[11] Over the next two days, police executed further searches of the associate’s address and the stream, locating a number of those items involved.
Relevant principles and purposes of sentencing
[12] In sentencing the offender, Mr Laupama, I may take into account the following purposes of sentencing:2
(1)to hold the offender accountable for harm done to the victim and the community by the offending;
(2)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm;
2 Sentencing Act 2002, s 7.
(3)to provide for the interests of the victim of the offence, or in this case the victim’s family;
(4)to provide reparation for harm done by the offending;
(5)to denounce the conduct in which the offender was involved;
(6)to deter the offender or other persons from committing the same or a similar offence;
(7)to protect the community from the offender; and
(8)to assist in the offender’s rehabilitation and reintegration.
[13]In my view, all these are relevant in the present case.
[14] I must also take into account the principles of sentencing under s 8 of the Sentencing Act 2002. I have considered these, and I am of the view the most relevant here are:
(1)the gravity of the offending, including the offender’s degree of culpability;
(2)the seriousness of this type of offence;
(3)the general desirability of consistency between sentences for similar offending;
(4)information received concerning the effect of the offending on the victim, or in this case the victim’s family;
(5)to impose the least restrictive outcome appropriate in the circumstances;
(6)any particular circumstances of the offender that make an otherwise appropriate sentence disproportionately severe; and
(7)the offender’s personal, family, whānau, community and cultural background.
Case law
[15] There is no tariff case for being an accessory after the fact to murder. In R v Ovalau this Court stated that sentences for such offending range from community- based sentences up to three years’ imprisonment.3 Although cases are decided on their own facts, the most closely similar cases to the present offending have generally resulted in starting points of 12–18 months’ imprisonment.
[16] In R v Ovalau, involving a dispute between two gangs resulting in someone being shot and killed with a shotgun, the Court did not consider sentences of community work would be appropriate for offenders, who had witnessed the killing and transported the principal offenders away from the scene. The Court there adopted starting points of 18 months’ imprisonment, which it then discounted by 50 per cent for guilty pleas and other mitigating factors such as the defendants’ youth, lack of previous convictions, early guilty pleas and co-operation with police. This Court then arrived at an end sentence of nine months’ imprisonment, granting leave to apply for home detention.4
[17] In R v Togiaono the offender was sentenced to four-and-a-half months’ home detention after pleading guilty to one charge of being an accessory after the fact to murder and one charge of being accessory after the fact to causing grievous bodily harm.5 The “lower” starting point of 12 months’ imprisonment in that case reflected the fact the defendant’s behaviour did not involve either any direct lying to the police, or acts involving concealing of the murder weapon or assisting the principal offender to evade detection for any lengthy period of time.6
3 R v Ovalau HC Tāmaki Makaurau | Auckland CRI 2006-092-10484, 13 March 2007 at [12].
4 At [14].
5 R v Togiaono [2015] NZHC 2783.
6 At [10].
[18] In R v Colvin, also involving a plea of guilty to one charge of being an accessory after the fact to murder, the offender was sentenced to five months’ home detention.7 In that case, the defendant assisted the principal offender in driving them to pick up a shotgun, which that offender then used to kill the victim. The defendant later took the gun to different addresses to try and hide it, and asked an associate if he had cleaned it. The Court considered 18 months’ imprisonment was an appropriate starting point there, given what the Court considered to be pre-meditation and a demonstrated intention to destroy evidence.8
Aggravating and mitigating factors
[19] In the present case, there are a number of both aggravating and mitigating factors. Aggravating factors here include:
(1)The damage and harm resulting from the offence.9 The extent of this harm can clearly be seen in the victim impact statements adduced to the court. They make sad and concerning reading and I thank the authors for taking the time and trouble to complete this difficult exercise. It is clear the victim’s death has had a massive impact on his partner. She stated in her victim impact statement that she could not “see ahead to get [her] mind and heart into the right headspace to continue living like some normal person without the love of [her] life by [her] side.”
(2)The nature and extent of the connection between the present offending and the offender’s participation in a gang. Mr Laupama was a patched Mongrel Mob gang member at the time of the offending. I accept that his actions in assisting his co-offenders after the attack on the victim were borne largely out of loyalty to and membership of the gang. This is recognised in the PAC report as well.
7 R v Colvin [2022] NZHC 468.
8 At [10].
9 Sentencing Act, s 9(1)(d).
(3)Mr Laupama’s previous convictions, relevantly which include him being sentenced in August 2016 to 18 months’ imprisonment on one charge of wounding with intent to injure/reckless disregard (manually).
[20] Against these, there are several factors in mitigation of the present offending, which include:
(1)the offender Mr Laupama’s guilty plea, which I accept was entered at the earliest opportunity once the charge of accessory after the fact to murder was laid;
(2)a degree of remorse on Mr Laupama’s part;
(3)the assistance Mr Laupama provided to police. This included a detailed statement which according to the Crown allowed the investigation to progress “significantly”. The police confirm it allowed them to establish the roles and movements of the offender and his co-accused as well as the identity of the principal offender, and also to locate what is believed to be the murder weapon and items of clothing worn by the co-accused; and
(4)the fact Mr Laupama has signed a formal written statement.
Starting point
[21] Based on what it maintains is the relevant case law here and the particular facts of this case, the Crown says a starting point of between 18 months and two years’ imprisonment is appropriate. It supports a 20 per cent discount for the mitigating factors personal to the offender I have outlined above, as well as a full 25 per cent discount for the guilty plea. This results in an end sentence of between 10 and 14 months’ imprisonment.
[22] In response, counsel for the defendant contends for a lower starting point at 12 months’ imprisonment on the basis the culpability of the defendant here is lowered by what is said to be the real difficulty he would have had in avoiding the offending.
Applying a 25 per cent discount for his guilty plea on this results in an end sentence of nine months’ imprisonment.
[23] In sentencing Mr Laupama, I bear in mind this Court’s comments in R v Ovalau that “a deterrent sentence is normally called for when assistance is given to those responsible after a murder has taken place”.10 Having regard to the cases I have outlined earlier, and the involvement of Mr Laupama in the offending, I consider a starting point here of 18 months’ imprisonment is appropriate.
[24] This starting point reflects the degree of Mr Laupama’s culpability here in what is assuredly serious offending. I also note the significantly harmful impact Mr Laupama’s involvement in the offending has had on members of the victim’s family, with whom I am to understand Mr Laupama was reportedly close, a family who took Mr Laupama in when he was in need on at least two occasions. It is important that involvement such as Mr Laupama’s in this offending does not go unacknowledged but is denounced accordingly.
[25] Balanced against this, however, I do need to acknowledge here Mr Laupama’s assertion that with his gang membership at the time he was expected to assist the principal offenders. On this aspect his counsel, Mr Hannam, informs me that Mr Laupama was apparently concerned about his own safety if he refused them.
[26] No sentence imposed can provide reparation for harm done by this offending to the victim and the victim’s family. Overall, I consider a starting point of 18 months’ imprisonment holds Mr Laupama accountable for his role in what was grave and seemingly senseless offending, and is a clear denunciation of his involvement in that offending.
Adjustments
[27] By way of adjustments to the starting point, a 25 per cent discount is warranted for the defendant’s guilty plea, as the Crown accepts.
10 R v Ovalau, above n 3, at [12].
[28] I am also prepared in this case to provide the 20 per cent discount for mitigating circumstances personal to the offender suggested by the Crown. I acknowledge in this respect Mr Laupama’s assistance and co-operation with police, including the extensive and valuable evidential interview he provided. It is said too that he has apparently been very deeply affected by the events and fully regrets his role in what occurred. I understand Mr Laupama has said his stated intention is to have no more to do with gang life and that his partner will aim to do her best to ensure he maintains this goal.
[29] This results overall in a 45 per cent discount. On a starting point sentence of 18 months’ imprisonment this total discount leads to an effective end sentence of 10 months’ imprisonment.
Home detention
[30] Given the length of the end sentence here, I need to consider now whether it should be converted to a sentence of home detention.
[31] The Crown notes a number of factors both in support of and against a sentence of home detention here. Ultimately, however, the Crown contends that home detention is the least restrictive sentence and submits a sentence of home detention is appropriate. In particular, the Crown highlights a degree of concern with respect to Mr Laupama’s safety in prison, given the assistance he has provided to the police in this case.
[32] Counsel for the defendant for their part submits that a sentence of home detention is appropriate to acknowledge Mr Laupama’s background and his determination to put his association with the Mongrel Mob gang behind him. Counsel submits there are a number of mitigating factors in this case (as identified above) which support a sentence of home detention. In addition, Mr Hannam suggests there are a number of positive factors which suggest Mr Laupama will be compliant with a home detention sentence, including his choice to assist police, the support of his partner, his substance-free lifestyle, and his employment with a labour agency, which counsel hopes will continue while Mr Laupama serves his sentence.
[33] Given all the circumstances of this particular case, and the clearly devastating impact Mr Laupama’s involvement in this offending has had on members of the victim’s family, I would have been inclined to impose a sentence of imprisonment in this case. The fact, however, that home detention is advocated for as the least restrictive sentence by both parties as well as the writer of the PAC report, and noting in particular here possible risks to the defendant’s safety if a sentence of imprisonment were to be imposed, I am ultimately, but cautiously, dissuaded from this view.
[34] After careful consideration, I agree with the parties that a sentence of home detention is appropriate here. Certainly, it is the least restrictive option in the circumstances and will support Mr Laupama’s eventual reintegration at the conclusion of his sentence. I also would caution that home detention is by no means to be understood as a light sentence. Rather, I am satisfied such a sentence will serve as a denouncement of Mr Laupama’s actions, will hold him accountable and hopefully will instil in him an acknowledgement of the harm of those actions. In imposing a sentence of home detention, I do acknowledge this may possibly allow greater opportunity for Mr Laupama to maintain an association with the gang should he choose to do so, and therefore it might also present a higher risk of reoffending. However, I have been assured Mr Laupama has strong motivation to withdraw from involvement in the gang and overall I am satisfied there is good support available to Mr Laupama in these circumstances to do so.
[35] Accordingly, I am ultimately satisfied home detention is appropriate here and convert the sentence of 10 months’ imprisonment to a period of five months’ home detention.
Name suppression
[36] As to any name suppression orders relating to the defendant Mr Laupama that may have been in place up until now, they are lifted.
Conclusion
[37] Mr Laupama, on the charge of being an accessory after the fact to murder you are sentenced to five months’ home detention to be served at the approved address
accepted by Corrections or the authorities. The standard conditions of home detention with an electronic monitoring condition are to apply.
Gendall J
Solicitors:
C&M Legal for the Crown
Hannam & Co Lawyers Limited for the Defendant
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