R v Lawson

[2023] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-000938

[2023] NZHC 2521

THE KING

v

MANA LAWSON

Hearing:	8 September 2023
Counsel:	W J Tupua for Crown M Bott for Defendant
Sentence:	8 September 2023

SENTENCE OF ELLIS J

[1]        Mr Lawson I am sentencing you today on one charge of unlawful possession of a firearm and one representative charge of wounding with intent to cause grievous bodily harm.1 I’ll come back to the things you did that resulted in those charges in a moment.

[2]        Earlier this year I gave you an indication of the sentence that would be imposed. I said the starting point would be nine years’ imprisonment but that you would get a 25 per cent discount off that if you pleaded guilty, which you then did. I also said that you could get a further discount of between 20 and 25 per cent as a result of matters discussed in a report prepared for you by Dr Jarrod Gilbert, but that Mr Bott

1      The maximum sentence for the firearm charge is four years imprisonment. The maximum sentence for the wounding charge is 14 years imprisonment.

R v LAWSON [2023] NZHC 2521 [8 September 2023]

was also hoping to get further information about a possible Foetal Alcohol Spectrum Disorder diagnosis and how that might have contributed to you being here today. I’ll come back to those things at the end.

[3]        I need to talk first about what happened on 23 April 2022. Although I talked about them in my sentence indication it is important to repeat some of what I said again today.

[4]        So on that day, 23 April 2022 you and some other people—including Mel Petersen—were in the Wellington CBD in the early morning. You had been drinking in a number of bars for some hours before. Some of the people you were with were associates or patched members of the Mongrel Mob and I think the Killer Beez.

[5]        The three victims had also been drinking in town that night, in the company of others, some of whom were associates or patched members of a rival gang. They were celebrating the 21st birthday of one of the victims, Mr Dekiah Poe.

[6]At some point your group became aware that the other group were around.

[7]        At about 5am your group drove in a convoy and parked on Inglewood Place,  Te Aro. You walked from there to Dixon Street. Mr Petersen had a 12-gauge shotgun hidden in his left trouser leg.

[8]        Your group approached the victims’ group, who were standing on the footpath outside Calendar Girls. When one person in your group approached the other group he was punched in the face. Your group retreated towards Inglewood Place.

[9]        Mr Petersen then took the shotgun out of his trousers and gave it to  you,    Mr Lawson. You fired the gun from your hip in the direction of the other group as they were walking around the corner into Inglewood Place. They were about 10 metres away at that point.

[10]      The shot you fired hit the three victims in the head, critically wounding both Mr Poe and Mr Imani Tuala. Mr Poe and Mr Tuala suffered serious head injuries.

[11]      Mr Poe had a ruptured eye. Shotgun fragments are still lodged in his brain and near his heart. There were fractures to bones in his face. He needed emergency surgery to take the pressure off his brain and to fix his eye. It turned out the shotgun fragments lodged in the back of his eye could only be removed by removing the eye itself.

[12]      Mr Tuala had gunshot wounds to the face, neck, chest, brain and tongue. He needed an operation to replace a piece of bone in his skull which had earlier been removed due to the brain bleed and swelling as a result of the gunshot wounds. He is still weak with reduced sensation in his hand, the last information I have is that he is unable to drive.

[13]      The third victim received a wound to his left cheek after being struck in the face by pellets. He refused medical treatment though at the time and was not admitted to hospital.

[14]      As I talked about back in April this year Imani Tuala’s mum has written a powerful victim impact statement where she talks about her family's life and her son's life being changed forever by what happened that night. She and her family were told by doctors that Imani was going to die. Although he proved them wrong, he walks with a limp and can no longer play rugby. Like Mr Poe I think he was only 21 years old. He cannot work. But despite all that Imani’s mother has somehow managed to forgive you and even to wish you well. She is obviously a very special and very strong woman and I do hope that you perhaps get a chance to meet her one day. I have read the letter that you wrote in which you say to her and her family and to the families of the other victims how deeply sorry you are and that you are ashamed of what you have done. Some of the report writers have also talked about your genuine remorse.

[15]      When I decided that a starting point of nine years imprisonment was appropriate for the wounding with intent to cause grievous bodily harm charge, I took into account the very serious injuries suffered by Mr Tuala and Mr Poe, your use of a shotgun at close range, which might well have killed, and of course nearly did kill, someone. And I took particular account of the fact that the attack took place in a public place with others around and the risk that that involved to complete strangers.

[16]      Although you have other convictions for violent offending I did not increase the starting point for that. I note that the neuropsychologist who has written a report about you says that you should have had a communication assistant to help you with your past interactions with the criminal justice process. I am going to come back to her report again soon.

[17]      As I said in April, that nine year starting point will be reduced by 25 per cent because you pleaded guilty. That is because it shows acceptance of responsibility by you and avoided the need for a trial.

[18]      So now there is the question of any further discounts for the things talked about by Dr Gilbert and the new information I have in the form of a report from Dr McGinn, a neuropsychologist and an Alcohol and Drug Report and the Provision of Advice to Courts report. As I mentioned earlier I have also read that letter that you wrote back in April, after the sentence indication.

[19]      As I said a few months ago, Dr Gilbert painted a very distressing picture of your upbringing and family life, which was full of emotional and physical abuse, particularly from your step father who was a Mongrel Mob member. You experienced the abuse yourself and you saw it being inflicted on others. People did not believe you when you told them what was happening. You had a lot of difficulties at school and dropped out very early. You joined the Killer Beez when you first went to prison— you say it was the way to survive in there.

[20]      You had no relationship with your biological father when you were growing up; he was also a Mongrel Mob member I think who was in and out of prison. He was in prison when you were born. But you have a much better relationship with him now since he’s turned his life around, and I note what Mr Bott told me this morning about him wanting to be here today to support you and I am sure he would have if it had not been for being at your cousin’s tangi. You are close to your mother and you whakapapa to her iwi, Ngāti Porou. She has told the report writers about some of the terrible things that happened in her life that led to her drinking a lot when she was pregnant with you.

[21]      You have a 10 year old son yourself but you do not see him often. You have  a good relationship thought I think with your current partner.

[22]      Dr McGinn, the neuropsychologist has confirmed the diagnosis of Foetal Alcohol Spectrum Disorder and also of traumatic brain injury. The Courts rightly recognise that FASD as we call it in particular reduces an offender’s culpability; we recognise that it is not fair to judge and sentence people like you and your actions in quite the same way as we would judge and sentence somebody who does not have those difficulties.

[23]      Dr McGinn also says you have symptoms of ADHD, mild intellectual disability and what she calls adaptive impairment, which means it is really hard for you to live successfully in the community. You have weaknesses in verbal communication and reasoning, and real problems in terms of attention and verbal and visual memory. You also have difficulty working productively and you tend unintentionally to make things up. You have some difficulties with reading and numeracy.

[24]      Dr McGinn says all this means you are likely to be impulsive and likely to be led astray. I think those things played out very clearly in the events on 23 April 2023. You are also particularly susceptible to the effects of drugs or alcohol, and you are not good at thinking about the consequences of your actions and how they might affect other people, or at problem solving, through no real fault of your own.

[25]      The AOD report talks in more detail about your relationship with drugs, alcohol and gambling. You have used cannabis since primary school, methamphetamine since you were 13. In the last 10 years you reported that you were using a gram a day, two grams when you were in company. You have used other drugs when you can get them and you also drink alcohol; Dr McGinn says that your mother reported that you were given 100 mls of vodka quite regularly when you were a tiny baby. You have a gambling problem. To your credit I think, you do not smoke. Overall the AOD report says you have severe amphetamine use disorder, severe cannabis use disorder, severe alcohol use disorder and a severe gambling disorder. In a controlled environment like prison, however, these are in early remission.

Importantly, the writer also notes that although you have been in prison a number of times before you have never received treatment for these things. And you yourself recognise and understand, I think, that total abstinence at stopping altogether is the only real answer for you.

[26]      Mr Tupua for the Crown accepts that there is a causative connection between all these things and what you did on 23 April 2022 which was not only impulsive but done without thought of the harm you were likely to cause. The Crown also acknowledges that your difficulties are such that they might make a sentence of imprisonment more severe for you than for other people. But Mr Tupua also quite rightly says that whatever the available sentencing discounts might be for these things the end sentence still needs to reflect the seriousness of what you did.2 That is a really hard balance for me to achieve.

[27]      Mr Bott has urged a therapeutic approach to sentence but he accepts that imprisonment is inevitable, the reality and practicalities around what anything more therapeutic could look like are far from clear. I do note, though, that the AOD report writer recommends long-term residential AOD treatment at somewhere like Moana House in Dunedin. I agree that seems ideal. But even if home detention had been an available sentencing option today, it could not be to Moana House, they could not take you on home detention so it is an option that needs to be—and I hope will—be explored at the time of your release from jail and at Mr Bott’s request I do direct that the reports that have been provided for the purposes of the sentencing today be provided to Corrections and to the Parole Board.

[28]      So overall, I consider that added to the 25 per cent guilty plea discount there should be a further 30 per cent discount for all the things I have just spoken about, including remorse. I think any greater discount would result in a sentence that does not adequately reflect and denounce the seriousness of your offending, of what you did. So a combined discount of 55 per cent will take your end sentence to one of four years’ imprisonment.

2      McCaslin-Whitehead v R [2023] NZCA 259 at [61].

[29]      Before we finish today, Mr Lawson, I want to tell you how grateful you should be to your lawyer, Mr Bott. He has worked really, really hard to make sure the Court understands the particular difficulties in your life and how they have contributed to you being here today. Without him your sentence would, I am sure, have been quite a bit higher. But, because he has helped you the way he has the final sentence, I will impose on the charge of wounding with intent to cause grievous bodily harm four years’ imprisonment. The sentence on the firearms charge will be one year’s imprisonment, to be served concurrently—which means that you serve them at the same time.

[30]      So your final sentence today Mr Lawson is four years’ imprisonment. Thank you.

Rebecca Ellis J

Solicitors:

Crown Law, Wellington

Postscript

[31]      After I had sentenced Mr Lawson this morning Mr Bott asked that I also deal with the  charge  he  is  facing  for  breaching  his  home  detention  conditions  on  14 February 2022; he failed to report on that day. To the extent Mr Lawson had not already pleaded guilty to that charge (there being some confusion on that front) he entered a guilty plea through Mr Bott this morning. I stood the matter down so that Mr Tupua could obtain instructions on sentence.

[32]      On my return to Court he advised that Corrections sought a sentence of imprisonment (due to previous non-compliance) but agreed that it could be imposed concurrently with the sentence imposed earlier today.

[33]      Mr Bott took issue with that. He referred to the neuropsychologist’s report which expressly discusses the particular compliance issues that flow from Mr Lawson’s FASD. He submitted a conviction and discharge was appropriate. I agreed with Mr Bott.

[34]I convicted and discharged Mr Lawson on the breach charge accordingly.