R v Liev
[2017] NZHC 2253
•18 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-5315 [2017] NZHC 2253
THE QUEEN
v
SENG LEK LIEV APHICHART KORHOMKLANG LUIGI HAVEA
TAFITO MASI VAIFALE JOSEPH BENJAMIN HAURUA SODARITH SAO
Hearing: 18 September 2017 Appearances:
G R Kayes, L Radich and H Benson-Pope for Crown
M W Ryan for S L Liev
H B Leabourn and A M M Ives for A Korhomklang
M Kan, F Pereira and J Yang for L Havea
J Munro, D S Niven and J N Olsen for M Vaifale
I D Tucker for J B Haurua
L Cordwell for S SaoMinute:
18 September 2017
SENTENCING BY PALMER J
Solicitor/Counsel:
Crown Solicitor, Manukau
M W Ryan, Barrister, Auckland
H B Leabourn and A M M Ives, Barristers, AucklandMichael Kan Law Ltd, Auckland
J D Munro, D S Niven and J N Olsen, Barristers, Auckland
Tucker & Co, AucklandL B Cordwell, Barrister, Auckland
Copy to:
M Gibson, Barrister, Auckland
R v LIEV & ORS [2017] NZHC 2253 [18 September 2017]
Introduction
[1] Around 9.30 pm on Monday 29 February 2016, outside her house in Waterview Auckland, Ms Jindarat Prutsiriporn was taken, under threat of being shot, from the back of one car and put in another. Some 22 hours later, just before
7.00 pm on Tuesday 1 March 2016, Ms Prutsiriporn came out of the boot of another car on Huia Road, Papatoetoe. She sustained serious head injuries in doing so. She died in hospital of her injuries.
[2] Ms Cecilia Hansen, Mr Becoylee Paleaasina, Mr Raymond Brown and Mr Panepasa Havea all pleaded guilty to kidnapping. They were convicted and have already been sentenced.
[3] Mr Seng Lek Liev, Mr Aphichart Korhomklang, Mr Luigi Havea, Mr Tafito Masi Vaifale, Mr Joseph Benjamin Haurua and Mr Sodarith Sao have been convicted of the kidnapping and manslaughter of Ms Prutsiriporn. Mr Sao pleaded guilty to both charges just before trial. Mr Vaifale and Mr Haurua pleaded guilty to kidnapping but not guilty to manslaughter. Mr Liev, Mr Korhomklang and Mr Havea pleaded not guilty to both charges. But you were each convicted of kidnapping and manslaughter on 12 July 2017. I am to sentence you today.
[4] Kidnapping carries a maximum sentence of 14 years’ imprisonment. Manslaughter carries a maximum sentence of life imprisonment. These are, obviously, serious offences. I now have to decide what sentences should be imposed. I will do that in five parts:
(a) First, I will mention the purposes and principles of sentencing. (b) Second, I go through what happened here, in general terms.
(c) Third, I set a starting point for sentencing each offender based on the
offending here compared with other cases.1
1 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
(d)Fourth, for each offender, I consider any adjustments for aggravating or mitigating factors based on their personal circumstances or guilty pleas.
(e) Fifth, I consider whether to order minimum periods of imprisonment.
Part One: Approach to Sentencing
[5] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In particular, here, I have regard to the purposes of:
(a) holding you accountable for the harm done to the community;
(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;
(c) denouncing your conduct and deterring you and others from committing similar offences;
(d) protecting the community from you; and
(e) promoting your rehabilitation and reintegration.
[6] I am also required to take into account principles of sentencing which, here, focus particularly on:
(a) the gravity of the offending, the degree of your culpability and seriousness of the offending;
(b)the importance of consistency in dealing with similar offenders committing similar offences in similar circumstances;
(c) the effect of the offending on the community; and
(d)the requirement that I must impose the least restrictive sentence appropriate in the circumstances.
Part Two: What Happened?
[7] First, I outline the facts of what happened, as revealed through the trial.
[8] Ms Prutsiriporn was a five-foot-two-inch, 50-year-old Thai woman weighing about 50 kg. She was involved in the drug world. She had been convicted of 11 drugs charges in 2009 and 2010 including supplying methamphetamine. At the time of her death, she was on active drugs charges. The relationship with Mr Liev had once been close – to the extent that, before their falling out, Mr Liev called Ms Prutsiriporn “Mum”. She was arrested in December 2015 for drug possession, along with Mr Liev. After that their relationship broke down. Abusive, suspicious text messages between them and others, involving allegations of theft and blackmail, illustrate that graphically.
[9] It is not exactly clear why Ms Prutsiriporn was kidnapped. But Mr Liev was at the centre of it. He knew Ms Prutsiriporn. He asked Mr Korhomklang, Mr Sao and, later, Mr Ing to help him. And Mr Liev arranged for Mr Luigi Havea and Mr Panepasa Havea to provide muscle. Mr Panepasa Havea, Mr Vaifale, Mr Haurua, and Mr Paleaasina were members of the Ghost Unit of the East Chapter of the Head Hunter gang. Mr Luigi Havea was closely associated with the Ghost Unit. Ms Cecilia Hansen and Mr Raymond Brown were also “hang arounds”. There is evidence, in texts, that the Ghost Unit and/or the Head Hunters expected some reward out of this work. The inference is that they were hired for the job.
[10] The kidnapping was clearly carefully planned and pre-meditated. There was a first attempt, in mid-February, which failed. There is evidence of a meeting at Mission Bay on the afternoon of 14 February 2016. Photographs, taken on Mr Luigi Havea’s phone, and polling data, put Mr Luigi Havea, Ms Hansen, Mr Haurua, Mr Paleaasina, and Mr Liev in Mission Bay. Mr Haurua’s text messages indicated they were on a “snatch job” of an “Asian chick”. That night, and into the early hours of the following day, her house was staked out. The same people were in the area: Mr Haurua, Mr Luigi Havea, Mr Liev, Ms Hansen.
[11] But Ms Prutsiriporn wasn’t home – she was up north. And around 2.35 am, the Police arrived, having been called by a passer-by about suspicious behaviour of a group of people. The group told the Police they were waiting for their shift change in their security work and they dispersed. Disturbingly, Mr Oloamanu, a Captain in the Head Hunters, was later able to obtain the name and address of the passer-by who called, through a source in Vehicle Testing New Zealand, from the licence plate of the car in which he passed by.
[12] On 29 February 2016 a new plan was put in place. Mr Liev told Mr Korhomklang to lure Ms Prutsiriporn out of her house on Alford Street in Waterview. Mr Korhomklang did that by asking a friend, Mr Aenoi Khammanivong, to buy drugs from her. The Ghost Unit and associates were in place, in three cars, nearby. Mr Sao and Mr Liev were also in the vicinity. Mr Liev’s phone was off. He was using Mr Sao’s phone, issuing instructions to Mr Korhomklang such as “let her jump in to do, n turn inside light on”. But, having ensured Mr Khammanivong was in place, Mr Korhomklang left. At around 9.30 pm Ms Prutsiriporn got into the back seat of Mr Khammanivong’s car. About 30 seconds later, Mr Panepasa Havea and an unidentified man opened the back doors, threatened to shoot Ms Prutsiriporn, though there is no evidence of a weapon, and threatened her family. They put her into another car.
[13] We don’t know exactly how Ms Prutsiriporn spent the next 19 hours. We do not know that she was subjected to violence. But she must have been in dire fear for her life. Polling data and texts indicate a number of those involved went out west, to Cornwallis. Ms Hansen and others went downtown to clear out Ms Prutsiriporn’s bank account with her EFTPOS card and her pin number which had been acquired. Mr Sao arranged for him and Mr Liev to stay at the house of a friend, Mr Ing. Around 1.30 am Mr Korhomklang obtained another car from another friend. Mr Luigi Havea appeared to be issuing directions about where to go.
[14] By approximately 5.00 am on 1 March 2016, Mr Vaifale and Mr Haurua had custody of Ms Prutsiriporn. Mr Haurua sent some offensively callous texts about having done “a snatch” and having “an idiot in the boot” who “added her smell to the car smell”. He called her a “bitch” and a “fuckhead”. He agreed with a friend
who suggested by text he “fuckin’ punch her in the muff”. From the texts, we know that, about 7.00 am, they took her to Mr Haurua’s place in Hastie Ave, Mangere Bridge, and found a sheet to bind her with. I do not consider we know whether she was bound then or not. There is evidence she was making noise and had to be moved. Eventually, we know they took her to Mr Korhomklang’s house at Wayne Drive, Mangere, around 10.00 am. She was kept in the garage there until around
4.30 pm, without food or water according to Mr Haurua. Texts indicate Mr Vaifale and Mr Haurua, at least, were there with her.
[15] Before she was moved, Mr Liev and Mr Sao, driven by Mr Ing, arrived at the house. They talked to Mr Luigi Havea and Mr Korhomklang about what to do with Ms Prutsiriporn. They considered whether to hold Ms Prutsiriporn in the car in a public place, or at the house of a friend of Mr Sao’s or at the house of a friend of Mr Ing’s and Mr Sao’s, Mr Bonmey Touch, or at Mr Ing’s house. Mr Ing did not previously know what was going on and objected to being part of it. It was Mr Luigi Havea who made the decision to take her to Mr Touch’s house at Caspar Road, Papatoetoe.
[16] Around 4.30 pm, at Mr Liev’s direction, Mr Korhomklang drove Mr Ing’s car into the garage and Ms Prutsiriporn was put in the boot, bound with sheets from Mr Haurua’s house, with ropes and with blue duct tape, with a red necktie around her throat. We don’t know who was responsible for binding her. But the jury was sure that each of the defendants who were convicted at trial put Ms Prutsiriporn in fear of violence, which caused her to attempt to escape from the boot, which caused her death. And the jury was sure a reasonable and responsible person, in the shoes of each of the defendants as a principal or party to the offending, could reasonably foresee someone in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm.
[17] Mr Haurua and Mr Vaifale then went home. But Mr Korhomklang drove Mr Ing’s car, with Ms Prutsiriporn in the boot, to Mr Touch’s house in Caspar Road, arriving around 4.40 pm. Mr Liev, with Mr Sao and Mr Ing, followed. Mr Liev only stayed briefly, and he and Mr Korhomklang were gone by 5.00 pm. Mr Liev
instructed Mr Sao to stay with Ms Prutsiriporn and the car for two or three hours until he came back. He instructed him not to get drunk.
[18] A bit before 7.00 pm, Mr Ing and Mr Sao heard banging sounds coming from the boot of the car. Mr Sao drove off with Mr Prutsiriporn in the boot, presumably so people wouldn’t hear the sounds. In the car boot, Ms Prutsiriporn had found a knife, which she stuck down her trousers. She also found a chef’s steel. We don’t know exactly what she did. But she did something to try to escape from the boot because of the fear of violence the offenders put in her. Mr Sao texted Mr Liev saying “she up”, “what do o”. But he texted the wrong number, one digit different from Mr Liev’s. At 6.58 pm on Huia Road, Papatoetoe, when the car was approaching traffic lights, the boot came open and Ms Prutsiriporn, still bound, came out of it. Her head hit the road with a crunch, fracturing her skull. The chef’s steel was by her hand. Mr Sao texted the same wrong number, “she open the fuckin boot jump out”. He sped off. A crowd gathered. Ms Prutsiriporn lost consciousness. She did not regain it. Neither did Mr Liev use that phone again after that evening.
[19] Ms Prutsiriporn had massive head injuries with skull fractures and bruising and bleeding of the brain. There was no brain activity the next morning. Just after midnight on Thursday 3 March 2016, the ventilator was turned off and Ms Prutsiriporn’s heart stopped.
[20] Mr Sao, you pleaded guilty before trial to an Agreed Summary of Facts that was generally consistent with the outline I have just provided, though not as detailed. Two differences were that the summary that was the basis for your guilty plea stated that:
(a) Ms Prutsiriporn’s fatal injuries were suffered both from her escape from the boot and from an assault. But the Crown does not pursue the suggestion given the evidence at trial and I do not consider that.
(b)Mr Sao, you helped convince Mr Ing to go along with the plan during the options discussion at Wayne Drive according to the agreed statement and there was support of evidence for that at trial.
[21] I have received a Victim Impact Statement from a close friend and family representative of the victim. She speaks of Ms Prutsiriporn as “a kind, generous, fun, confident, loud, chirpy woman who was likeable and popular”. Her eldest son now has constant nightmares and fear for his family and wakes during the night to check his house is secure and his family is okay.
Part Three: The Starting Points
[22] Now, I consider the starting points for the sentences I am to deliver today.
Kidnapping
[23] I agree with the approach proposed or accepted by all parties that the lead charge for the purposes of sentencing should be the kidnapping charge. That was the primary offending here. It was the kidnapping which involved the threats or fear of violence which underlie the manslaughter charge. I consider the kidnapping charge, and the case law of kidnapping sentences, should provide a more accurate yardstick against which to measure culpability compared to the manslaughter charge.
[24] The four defendants who have already been sentenced for kidnapping were given starting points of three years’ and, for Mr Panepasa Havea, four years’ imprisonment. They all pleaded guilty, before trial, on the basis of summaries of fact that reflected more limited involvement in Ms Prutsiriporn’s kidnapping than that revealed for those of you at trial. Those defendants were not sentenced on the basis they were involved in planning the kidnapping, or being present during Ms Prutsiriporn’s detention during 1 March at Wayne Drive or Caspar Road. All except Mr Panepasa Havea were sentenced on the basis they did not have direct physical contact with Ms Prutsiriporn. And Ms Hansen and Mr Brown were not sentenced on the basis of membership of the Ghost Unit. Mr Panepasa Havea, in particular, can count himself lucky he was not sentenced on the basis of what emerged at trial. I do not consider the starting points of those who pleaded and were sentenced before trial are particularly useful in assessing culpability today.
[25] I have reviewed all of the cases of kidnapping sentences referred to me by the
Crown and defence counsel, as well as other cases which do not add much to them. I
am conscious that there is no tariff case, or guideline case, and that the Court of Appeal has stated there can be “an infinite variety of circumstances which underlie the crime of kidnapping”.2 Yet, it is possible to compare kidnappings in terms of the length of detention, the extent of pre-meditation, the number of offenders, gang involvement and the level of violence involved. I consider the kidnapping here against other cases in general terms first and then examine the role of each of the offenders.
[26] A review of the circumstances of other cases in relation to their starting points reveals, to me at least, a divergence of approaches which suggests to me that a guidance case may be useful at some point. To the extent a pattern in the sentences is discernible, and while there are exceptions, I consider it is the cases involving aggravated violence which tend to have justified starting points of 10 years’ imprisonment or more. Cases involving moderate or less violence tend, generally, to have starting points in a range from around three years to just over seven years.
[27] There is no evidence of aggravated violence here. This is not to minimise the offending. As the Crown submits, because Ms Prutsiriporn died we don’t know exactly what happened to her in the sort of detail like many other kidnappings. We do know that she was taken by threat to herself and her family who was in the house. She was taken by a large group of large people including gang members, who had planned her taking carefully. She was held for 22 hours without food or water and she soiled herself and she was bound in the boot of a car for two-and-a-half hours.
[28] But I agree with all of the parties that the offending in this case was not as serious as the case of R v Li,3 with starting points of 13-and-a-half and 14 years’ imprisonment, where the offenders forced their way into the victim’s home, armed with knives and a pistol, assaulted and bound her parents and took the victim for
20 hours, demanding a ransom of $1 million. The Crown says it was not significantly less serious, but I consider it is less serious than the Crown considers in
light of the violence.
2 R v Hall CA296/05, 28 February 2006, at [26], citing R v Wharton CA374/02, 27 March 2003.
3 R v Li CA299/05, 1 November 2006.
[29] The Crown submits the offending here is more serious than that in R v Hall with a starting point of 10 years,4 and more serious than that in R v Wyatt with a starting point of eight years,5 because of the greater premeditation, the gang involvement and the earlier failed attempt. Defence counsel generally submit the offending here was significantly less serious than Hall, because of the violence involved there. Mr Kan submits the offending here is less serious than that in Wyatt
but Mr Ryan submits the offending is more similar to Wyatt and Mr Leabourn points to Wyatt as well.
[30] In R v Hall the two offenders used a shotgun and knife to subdue the victim in his home, cut his hand severely in a struggle, bound and gagged him and drove him to the Kaweka ranges where he escaped. The Court of Appeal noted that the 10 year starting point was at the top of the range available. I consider the offending here approaches the seriousness of that offending. Although there is no evidence of use of a weapon or of injury inflicted by the offenders there was gang involvement and organised co-ordination of a larger number of people here.
[31] In Wyatt the offenders opportunistically held a knife to the throat of the victim, threatened to kill him, forced him to drive his car, used his EFTPOS card to withdraw funds, put him in the boot of a car, bound him and pushed him down a slope in the bush. The Court of Appeal upheld a starting point of eight years. I consider the offending here, in general, comparable to and somewhat worse than that. There was, in general, significantly greater pre-meditation, co-ordination of a larger number involved, and gang involvement though there was no evidence a weapon was used.
[32] The parties also differ over the relevance of R v Liang.6 The Crown submits the offending here is well beyond that in Liang, as well as Cook, Martin, and Blackett,7 other cases where starting points for kidnapping ranged between five and six-and-a-half years, because of the multiple attempts, the lengthy detention, and the
gang involvement. Mr Niven submits Mr Vaifale’s offending was more serious than
4 R v Hall, above n 2.
5 R v Wyatt [2009] NZCA 464.
6 R v Liang CA448/04, 2 June 2005.
7 Cook v R [2010] NZCA 87; R v Martin [2013] NZHC 2675; R v Blackett [2017] NZHC 1120.
that in Liang. Mr Leabourn submits Mr Korhomklang’s offending was similar. Mr Kan submits Mr Havea’s offending was less serious than that in Liang or Wyatt.
[33] In Liang the victim was punched and kicked by a number of people outside the back of a café where he met with someone whose car he had damaged. He was driven in the back seat of a car to another location where he was punched and kicked and a jersey was placed over his head. He was driven to a house by the offender, who was sentenced, where he was given a shower, given clothes to change into and allowed to sleep. The next day he was forced to withdraw $44,000 from the bank, taken to the doctor, escaped, forced to withdraw another $20,000 and finally called the police. The Court of Appeal upheld a sentence for the driver, whose house was used, that adopted a starting point of six-and-a-half years. The violence was worse than the offending here but the defendant was not involved with that. The consideration to the victim shown by the shower, clothes, and doctor and the lack of evidence of gang involvement are mitigating factors compared with the offending here. I agree that the offending here is worse than that in Liang.
[34] The facts of this case are difficult to compare with those of other kidnapping cases, given the extent of pre-meditation, the numbers of people involved, the gang involvement, and a 22-hour-long detention of a small vulnerable 50-year-old woman conducted with a distinct lack of humanity but with no evidence of violence or use of a weapon. But I consider that, in general, the levels of culpability here justify starting points for the offenders, for kidnapping, of somewhere between and including those in Hall of 10 years’ and, in Wyatt, of eight years’ imprisonment.
Manslaughter
[35] The manslaughter here is of an unusual kind. Manslaughter of a person under s 160(2) of the Crimes Act 1961 involves “causing that person by threats or fear of violence, … to do an act which causes … her death”. Mr Sao pleaded guilty to that offence. For the others found guilty at trial, the jury was sure, either as a principal offender or as a party, that each offender:8
(a) intentionally put Ms Prutsiriporn in fear of violence;
(b)that fear of violence caused Ms Prutsiriporn to do an act to attempt to escape from the boot, which caused her death; and
(c) that a reasonable and responsible person, in the offender’s shoes at the time, could reasonably foresee a person in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm.
[36] I directed the jury that, to be guilty, a defendant did not need to foresee all the specific details of how Ms Prutsiriporn escaped, but would need to know she was in the boot.
[37] There has only been one other recent sentencing for manslaughter under s 160(2)(d). The facts were quite different from those here. The offenders lured the victim to a remote location and confronted him in order to rob him of methamphetamine. The victim ran away and hid in a flood protection basin and drowned. Gendall J adopted a starting point of five years’ imprisonment for one offender for the manslaughter charge with assault with intent to rob as an
aggravating feature.9 Nation J adopted four-and-a-half years’ and four years’
imprisonment for the other two offenders.10 Mr Gibson in written submissions for Mr Haurua also referred me to a case of manslaughter in somewhat similar circumstances which attracted a starting point of four years and nine months’ imprisonment.11
[38] If I were sentencing the offenders here for the manslaughter charge only I would consider four to five years to be an appropriate range. But manslaughter cannot stand alone here. The manslaughter was part and parcel of the kidnapping. So I fix the starting point for the totality of the offending by uplifting the sentences
for kidnapping to reflect the manslaughter.
9 R v Marshall [2015] NZHC 2016.
10 R v Lucas [2017] NHC 651.
11 R v Te Tomo [2017] NZHC 1628.
[39] The Crown proposes a two-year uplift in the sentences for kidnapping for each offender, to reflect the manslaughter. Defence counsel agree an uplift is appropriate and propose various uplifts of between one year and two years. I agree with defence counsel, particularly Mr Niven, that some variation between the offenders may be appropriate to reflect, in general terms, their proximity to Ms Prutsiriporn’s circumstances which caused her death – of being in fear of violence and being in the boot. I also agree on the one to two-year range for an uplift. That is consistent with, for example, the 18 month uplift to the starting point
in R v Ormsby to reflect the offending contributing to the victim’s death.12
[40] I now consider the starting points for kidnapping and the uplift for manslaughter for each defendant.
Mr Liev’s starting point
[41] Mr Kayes, for the Crown, submits an appropriate starting point for Mr Liev on the kidnapping charge would be 12 years’ imprisonment and the appropriate starting point for all the other defendants for kidnapping would be 10 years. He submits there was overwhelming evidence Mr Liev was the architect of the kidnapping and involved in every step, with significant pre-meditation and co-ordinating of the various groups of people involved. Mr Kayes points to Mr Liev hiring the Ghost Unit as greatly increasing the intimidation and to the large scale of
11 people being involved with callous disregard for a vulnerable victim who was detained for 22 hours. In addition Mr Kayes submits I could consider an uplift to reflect Mr Liev’s offending while on bail for violent offending.
[42] In light of the case law, Mr Ryan submits the Crown’s proposed starting point of 12 years imprisonment for Mr Liev for kidnapping is manifestly excessive, especially in light of the starting point for Mr Panepasa Havea. Mr Ryan points out Ms Prutsiriporn’s death should not elevate the starting point for the kidnapping given that that is reflected in an uplift for manslaughter. He submits there is insufficient cogent evidence for me to be satisfied that Mr Liev was the architect and there was evidence that a member of the Head Hunters arranged the kidnapping because
Ms Prutsiriporn “owed coin” to Mr Panepasa Havea. He submits Mr Liev was not a member of a gang and was not directly responsible for any of the violence inflicted on Ms Prutsiriporn. Mr Ryan submits a starting point of eight years’ imprisonment is appropriate for kidnapping with an uplift of two years for manslaughter.
[43] I accept that Mr Liev was the architect of the kidnapping. The evidence of his relationship with Ms Prutsiriporn and the other groups involved, his locations at key times, texts and witness testimony persuade me he planned the previous kidnapping attempt in mid-February and the more sophisticated attempt that succeeded. There is no evidence Mr Haurua, who sent the text suggesting Ms Prutsiriporn owed coin to Mr Panepasa Havea, knew of the motivation of the kidnapping. Ms Prutsiriporn was a small, vulnerable middle-aged woman. Mr Liev is the only one of the offenders who seems to have had difficulties with her. Mr Liev’s pre-meditation was significant and sophisticated. He was the link between the various groups of those involved in the offending. He persuaded friends to help him. They in turn persuaded their friends to help, sometimes unwittingly. Mr Liev was a not a member of a gang but he hired a gang. Eleven people were charged. Mr Liev tried to conceal his involvement at times – having his phone off leading up to Ms Prutsiriporn being taken and using Mr Sao’s phone. He hired members of the Ghost Unit of the Head Hunters gang to provide muscle. He knew Ms Prutsiriporn was detained for 22 hours, under his direction. He was party to the decision that Ms Prutsiriporn be taken to Caspar Road in the boot of the car, bound. He went there too. He directed Mr Sao to remain there, with her in the boot. It was Mr Liev who Mr Sao tried to call when Ms Prutsiriporn came out of the boot.
[44] I consider Mr Liev’s offending is the worst of those involved due to his instigating and supervisory role. His culpability, for kidnapping, is similar to that in Hall. I consider an appropriate starting point for his sentencing would be 10 years’ imprisonment for kidnapping, with the maximum uplift in the range I have identified of two years’ imprisonment for manslaughter. I also consider that Mr Liev’s offending occurring while on bail for previous violent offending requires an uplift of two months’ imprisonment. So a starting point of 12 years and two months’ imprisonment for the totality of the offending.
Mr Korhomklang’s starting point
[45] The Crown submits Mr Korhomklang was an important participant in the plan to kidnap Ms Prutsiriporn. He was responsible for luring her out of her house, arranging a car to detain her, allowing his garage to be used to detain her, making computer searches to continue planning her detention, being present at the options discussion and driving her, bound in the boot, from his house to Caspar Road. The Crown accepts Mr Korhomklang was not involved in the mid-February attempt to kidnap Ms Prutsiriporn. Mr Kayes proposes a starting point of 10 years’ imprisonment for kidnapping and an uplift of two years for manslaughter.
[46] Mr Leabourn identifies, at some length, five phases of Mr Korhomklang’s
involvement:
(a) First, there is insufficient evidence Mr Korhomklang lured Ms Prutsiriporn out of her house in full knowledge she would be kidnapped, about which he was shocked.
(b)Second, it is open to me to find Mr Korhomklang may not necessarily have been specifically aware his friend’s car would be used in Ms Prutsiriporn’s kidnapping or with knowledge of where or the way in which she had been or would be detained.
(c) Third, he submits there was no express permission sought, or granted by, Mr Korhomklang that she be detained in his garage. While Mr Korhomklang claims he developed a very strong belief she was in the garage Mr Leabourn submits it is questionable whether he had any real ability to influence the presence of the group after they had gone into the garage or how or for how long she was detained.
(d)Fourth, he invites me to draw an inference Mr Korhomklang just wanted to get the people away from his house because his mother was coming home.
(e) Fifth, Mr Leabourn accepts it is open to me to find Mr Korhomklang backed the car up to the garage before Ms Prutsiriporn was put in its boot, and that he drove the car alone, with a strong feeling she was in the boot. But he submits Mr Korhomklang was concerned to get people away from his address and questions whether he had any other option. He submits Mr Korhomklang then distanced himself from her continued detention.
[47] On those grounds Mr Leabourn submits it is open to me to find Mr Korhomklang’s involvement was more limited than the Crown suggests or than other offenders. He submits Mr Korhomklang was someone contributing on the periphery. He submits there is no evidence Mr Korhomklang was aware of the Ghost Unit or gang involvement or of how many others were involved or what the plan was. He accepts the vulnerability of Ms Prutsiriporn and the length of her detention are aggravating factors but submits Mr Korhomklang did not know the extent to which she was detained, bound or held.
[48] Mr Leabourn submits a starting point of six to eight years’ imprisonment is appropriate in respect of the kidnapping charge, with an uplift of 12 to 18 months for manslaughter. On the uplift for manslaughter Mr Leabourn submits Ms Prutsiriporn’s death was completely out of the control of Mr Korhomklang and he could not have anticipated or contributed to it.
[49] I consider Mr Korhomklang was a key participant in the kidnapping. Perhaps he was not initially aware of the purpose of luring Ms Prutsiriporn out of her house. But, after he was told by Mr Khammanivong she had been professionally taken, I consider Mr Korhomklang had a very good idea of the purpose of requests by Mr Liev, who he knew had a beef with her. He effectively admitted as much in his police interview. He obtained a car for Mr Liev the evening of the kidnapping and he made his garage available the following morning. His internet searches were consistent with actively assisting the whole plan. Then, after being present at the options discussion he knowingly drove the car, alone, with Ms Prutsiriporn in the boot, to Caspar Road. I do not accept Mr Leabourn’s submissions that attempt to skirt around Mr Korhomklang’s responsibility for the offending. Mr Korhomklang’s
involvement was less than Mr Liev’s. But his role was not peripheral, it was central in his provision of resources and venues for detaining Ms Prutsiriporn and contributing to the planning for her detention.
[50] I consider an appropriate starting point for his sentencing would be nine years’ imprisonment for kidnapping, with the maximum uplift in the range I have identified of two years’ imprisonment for manslaughter. So a starting point of 11 years’ imprisonment for the totality of the offending.
Mr Sao’s starting point
[51] The Crown submits Mr Sao had knowledge of and significant involvement in the planning and co-ordination of Ms Prutsiriporn’s detention after she was kidnapped, though he was not involved in the previous attempt. He tried to borrow a car from Mr Ing that evening. He accompanied Mr Liev the next day and returned with him to Wayne Drive. He drove around the neighbourhood looking for Police at Mr Liev’s direction. He actively participated in the options discussion. He was responsible for Ms Prutsiriporn at Caspar Road. He drove the car away when she started making noises in the boot. He was driving the car when she came out of the boot. The Crown submits the starting point of his sentence for kidnapping should be
10 years’ imprisonment with a two-year uplift for manslaughter.
[52] On the basis of the case law, including R v Blom and R v Blackett,13 Mr Cordwell submits a starting point for Mr Sao of nine to 10 years’ imprisonment for the totality of offending would be appropriate between the starting points in those cases. He does not compare Mr Sao’s culpability with that of the other defendants.
[53] I consider Mr Sao’s level of culpability is similar to Mr Korhomklang’s. He had less involvement the previous evening but more involvement in the options discussion and in Ms Prutsiriporn’s detention in her final hours. He, alone, was driving the car when she came out of the boot. I consider an appropriate starting point for his sentencing for kidnapping would be nine years’ imprisonment for
kidnapping, with the maximum uplift in the range I have identified of two years for
13 R v Blom [2017] NZHC 827; R v Blackett, above n 7.
manslaughter. So a starting point of 11 years’ imprisonment for the totality of the offending.
Mr Havea’s starting point
[54] The Crown submits Mr Luigi Havea was one of two points of contact between Mr Liev and the Ghost Unit and was responsible for co-ordinating the Ghost Unit in mid-February and in the days of the successful kidnapping. Mr Kayes submits Mr Havea was present at Waterview when Ms Prutsiriporn was taken, he arranged the next meeting points, he communicated by text with Mr Liev the next morning (while he was at court) about an address to which to take Ms Prutsiriporn, and engaged in the options discussion at Wayne Drive. Mr Kayes submits he is a close associate of the Ghost Unit, warranting a mention in the Captain’s previous Christmas Shout Out by text. He submits I could consider an uplift for Mr Havea’s sentence to reflect the fact his offending occurred while he was on bail for assault, irrespective of the charge being dismissed. He submits a starting point for the kidnapping of 10 years’ imprisonment would be appropriate with an uplift of two years for the manslaughter.
[55] Mr Kan submits Mr Luigi Havea was a party to the offending, engaged by others to detain Ms Prutsiriporn. He acknowledges there was “a degree of planning” and Mr Havea played the role of overseer for the Ghost Unit but, among other things, submits Mr Havea acted in accordance with instructions and was not physically present during the restraining of Ms Prutsiriporn. Mr Kan submits he only played a supportive role behind the scenes and that represents less culpability. He refers to Mr Panepasa Havea’s starting point. From the options discussion at Wayne Drive, Mr Kan submits Mr Havea wanted the ordeal to finish. Mr Kan submits it was established Mr Havea was not a member of the Head Hunters but agrees that members of his family are and that he associated with gang members. He submits that should not be held against him. Mr Kan submits a starting point of seven years’ imprisonment is required for Mr Havea’s kidnapping, with an uplift of one year for manslaughter. He submits the charge on which Mr Havea was on bail has since been dismissed and no uplift is justified for that.
[56] I do not consider Mr Havea’s supportive role behind the scenes diminishes his culpability for the kidnapping overmuch. I accept he played a central role in planning and co-ordinating Ms Prutsiriporn’s kidnapping and ongoing detention. Even though he may not be a gang member he co-ordinated the gang’s involvement in the kidnapping. He was the decision-maker in the options discussion that led to Ms Prutsiriporn being taken to Caspar Road in the boot of the car though he didn’t go there himself. I consider Mr Luigi Havea’s culpability was only a little less than that of Mr Korhomklang and Mr Sao who provided the venues and resources and active planning for the detention. I consider an appropriate starting point for his sentencing would be eight-and-a-half years’ imprisonment for kidnapping, with an uplift of one-and-a-half years’ imprisonment for manslaughter. Furthermore, even though he was acquitted of the assault charge for which he was on bail, Mr Havea was continuing to co-ordinate this offending while he was at court dealing with that charge. I uplift Mr Havea’s sentence by three months to reflect his offending on bail. So a starting point of 10 years and three months’ imprisonment for the totality of the offending.
Mr Vaifale’s starting point
[57] The Crown submits Mr Vaifale was hired muscle as a member of the Ghost Unit and the Head Hunters. He was present at Mission Bay in mid-February, he was present at Waterview when Ms Prutsiriporn was taken on 29 February 2016. He was responsible for her detention from the early hours of 1 March 2016 for approximately 12 hours – at first in a van and then in the garage at Wayne Drive. Mr Kayes says Mr Vaifale bound Ms Prutsiriporn with rope and detained her until after 4.00 pm that afternoon. Mr Kayes submits the jury must have determined Mr Vaifale was present at the time she was put in the boot of the car. Mr Kayes submits a starting point of 10 years’ imprisonment is appropriate for kidnapping with a two-year uplift for manslaughter.
[58] Mr Niven refers to case law I have mentioned as well, in particular, to the
Dome Valley sentences – particularly that of Ms Jones which he says had a starting
point for two kidnappings of eight years with violence but not gang involvement.14
He submits Mr Vaifale was not involved in planning the kidnapping though he was present at Mission Bay. Mr Vaifale detained Ms Prutsiriporn in a van and at Wayne Drive until approximately 4.00 pm, acting in accordance with instructions from others. Mr Niven accepts Mr Vaifale’s DNA was found on one of the ropes used to bind her but submits it is possible that he loosened her bindings or released her and then re-tied her. Mr Niven accepts the jury’s verdict likely implies Mr Vaifale was found to have known Ms Prutsiriporn was placed in the boot before being driven away from Wayne Drive. He says Mr Vaifale had no further involvement after that. Mr Niven, for Mr Vaifale, submits an appropriate starting point for kidnapping would not exceed eight years and an uplift in the region of 18 months for manslaughter would be appropriate like that in Ormsby. He submits Mr Vaifale was not involved in planning but was engaged by others to detain Ms Prutsiriporn.
[59] I agree Mr Vaifale’s role was as muscle rather than in planning the kidnapping. I do not consider it was proved beyond reasonable doubt that he bound her. It is possible, but Mr Niven’s submission is a plausible alternative explanation for his DNA being on the rope binding her. But he was, as the Crown submits, directly responsible for Ms Prutsiriporn’s detention for most of the day of 1 March
2016. Acting under orders is not an excuse. His culpability was less than that of the others I have dealt with since there is no evidence he had a role in planning or co- ordinating the kidnapping. I consider his culpability was more similar, for kidnapping, to that in Wyatt. His role in her detention must have been relevant to putting her in fear of violence, though there is no evidence he hurt her. And the jury must have found he knew she was put in the boot of the car even though he didn’t go to Caspar Road himself. But unlike Mr Havea, Mr Vaifale did not decide Ms Prutsiriporn would be put in the boot of the car.
[60] I consider an appropriate starting point for his sentencing would be eight years’ imprisonment for kidnapping, with an uplift of one year’s imprisonment for manslaughter. So a starting point of nine years’ imprisonment for the totality of the
offending.
14 R v Blom, above n 13, and R v Blackett, above n 7.
[61] The Crown submits Mr Haurua was involved from the very beginning of the plan to kidnap Ms Prutsiriporn, on 14 February, and 29 February 2016 and he was responsible for her detention for at least 12 hours from early in the morning of
1 March until 4 pm when he left Wayne Drive. Mr Kayes submits aggravating factors are Mr Haurua’s membership of the Ghost Unit and the Head Hunters, the large number of participants, the vulnerability of Ms Prutsiriporn, her length of detention, and her callous treatment evidenced by Mr Haurua’s texts and not providing water. The Crown proposes a starting point of 10 years’ imprisonment for kidnapping uplifted by two years for manslaughter.
[62] Mr Tucker submits Mr Haurua was not significantly involved in planning but was a willing participant in the offending. He agrees Mr Haurua was responsible for holding Ms Prutsiriporn captive in the van from just after 6.00 am though he tried to limit his involvement. He suggests Mr Haurua’s texts, disclosing a callous attitude, are difficult to comprehend or defend but suspects there was a high degree of bravado. He agrees this is an aggravating factor, along with the involvement of the Ghost Unit, the prolonged period of detention and the deprivation of Ms Prutsiriporn of water. Although Mr Haurua’s position at trial was that he was not involved in placing Ms Prutsiriporn in the boot of the car, Mr Tucker agrees the jury’s verdict suggests that it accepted the Crown’s approach. Mr Tucker submitted that Mr Haurua’s involvement places him “high on the ladder but not at the very top” since he was acting at the direction of others. He submits a starting point of eight years for kidnapping would not be inappropriate with a further two years to reflect the manslaughter charge.
[63] I consider Mr Haurua’s culpability is similar to Mr Vaifale’s as hired muscle. They had the same roles. Mr Haurua took Ms Prutsiriporn to his own house to get a sheet to bind her with. And his texts about her were offensively callous. Again, acting under orders is not an excuse. He knew she was put in the boot of the car even though he didn’t go to Caspar Road himself. I consider an appropriate starting point for his sentencing would be eight years’ imprisonment for kidnapping with an
uplift in the range I have identified of one year’s imprisonment for manslaughter. So
a starting point of nine years’ imprisonment for the totality of the offending.
Part Four: Adjustments for Personal Circumstances and Guilty Pleas
Mr Liev’s personal circumstances
[64] Mr Liev is 27 years old, originally from Cambodia. The Department of Corrections reports he has been in New Zealand from the age of 14 and he has an eight-year-old daughter he hasn’t seen in three years. He has five previous convictions in New Zealand including for assault in 2010, drugs possession in 2011 and two convictions for assault with intent to injure in 2015. The Department of Corrections report assesses him as at medium risk of reoffending but high risk of harm to others. It advises his employment has been spasmodic, he got in with the wrong crowd, which he regrets, was addicted to illegal substances and has difficulty managing his anger. On Friday I also received a letter from Mr Liev apologising to the victim and her family that have been “traumatised from this outrageous incident” (in his words) as well as to his own family. He asks for forgiveness and says he won’t do it again. He professes his determination to change his life on the basis of a development plan.
[65] Mr Ryan submits no uplift is required to reflect Mr Liev’s six previous
convictions but if I disagree the two convictions for assault with intent to injure in
2016 would justify an uplift of two months’ imprisonment. Mr Ryan emphasises Corrections’ record of Mr Liev’s regret about becoming involved in the situation. He says Mr Liev concedes being previously addicted to illicit substances and he may want to engage in drug rehabilitation.
[66] I consider Mr Liev’s previous convictions for violence warrant an uplift of two months’ imprisonment. I encourage Mr Liev in his rehabilitation but I do not consider his late statement of remorse justifies a discount on the sentence when put alongside the report of Corrections. You will have to demonstrate to the Parole Board you are serious.
[67] Mr Korhomklang is 31 years old, originally from Thailand. He lived with his mother before the offending and says he has a daughter living with his ex-girlfriend. He has one previous boy-racing conviction from 2010. He says he was working as a supervisor in an aviation firm before being placed in custody. The Department of Corrections reports the key contributing factors to his offending are his poor decision-making, anti-social associates and drug use. He is said to be remorseful about his offending but he continues to minimise his role. He is assessed as having a moderate level of drug use and being motivated to undertake rehabilitative programmes. His risk of reoffending is assessed as medium but his risk of harm to others as high, given his offending.
[68] The Crown submits a discount may be appropriate to reflect Mr Korhomklang’s lack of relevant previous convictions. Mr Leabourn submits Mr Korhomklang is entitled to a discount for having no previous convictions and a further discount for good character. He also submits the Court could consider, as a Thai national, Mr Korhomklang will find serving a lengthy term of imprisonment in a New Zealand prison extremely difficult. He accepts Mr Korhomklang continues to deny his offending but submits his remorse for his actions and the impact on Ms Prutsiriporn and her family is genuine.
[69] I do not consider the evidence at trial suggested Mr Korhomklang had any problems living in a New Zealand environment. He has lived in New Zealand from a relatively early age. I do not make any discount for that or for remorse given his continued minimising of his offending according to the report of Corrections However, I do make a discount of four months for his previous good character. I suggest he will need to deal with his drug offending while in prison if he really wants to avoid future offending.
Mr Sao’s personal circumstances
[70] Mr Sao is 27 years old, originally from Cambodia. He was living with his sister in Manurewa. He has previous convictions for driving offences, for a drug
offence in 2009, for assault in 2012 and possession of an offensive weapon in 2013. The Department of Corrections reports he lacks remorse or insight into his offending. It assesses him as of medium risk of reoffending and a high risk of harm to others. It identifies his regular use of methamphetamine and association with co- offenders as contributing factors.
[71] The Crown submits no discounts or uplifts are available on the basis of Mr Sao’s personal circumstances. Mr Kayes submits Mr Sao’s guilty pleas before trial, saved considerable court time and a discount of 15 per cent would provide parity to those offenders already sentenced. Mr Cordwell submits his methamphetamine addiction fuelled his poor decision-making and submits he has a high prospect of rehabilitation. He submits the Correction report ignores Mr Sao’s expression of guilt at driving the car. He submits there should be no uplift for previous offending and there should be a 15 to 20 per cent discount for Mr Sao’s guilty plea.
[72] I do not consider an uplift or a discount is appropriate for Mr Sao’s personal circumstances. I do consider a discount of around 15 per cent for the guilty plea is appropriate; the same amount received by Mr Panepasa Havea and Mr Brown. I discount Mr Sao’s sentence by 20 months, to reflect his guilty pleas to both kidnapping and manslaughter.
Mr Havea’s personal circumstances
[73] Mr Luigi Havea is 28 years old, originally from Tonga, who at the time of the offending lived with his mother and brothers in Mangere Bridge. He advised Corrections he has three children aged 11 and twins of 14 months who live in Australia with their respective mothers, and that he has been in a relationship for seven years. He has one previous conviction, for assault committed in 2012, for which he was sentenced to 50 hours of community work. He has been working as a bouncer in his family-owned company. The Department of Corrections assesses him of posing a very high risk of harm to potential victims given the offending and at low risk of reoffending though that is more likely should he re-engage with his anti-
social friends. He has apparently denied any responsibility for Ms Prutsiriporn’s
situation.
[74] The Crown submits no other discounts or uplifts are justified. Mr Kan submits no uplift is necessary for Mr Havea’s limited criminal history because his convictions for assault are historical or not similar to that here. Mr Kan submits Mr Havea should receive a discount of 10 to 20 per cent for his previous good character and on compassionate grounds for his personal circumstances, which appear to derive from his reaction to being in custody, his expression of remorse to counsel and his completion of courses in prison and messages of support. I have seen a lot of messages of support for Mr Havea, from his mother, partner, relatives, friends and members of his church.
[75] Mr Havea’s previous offending was not serious. But his conviction means he does not warrant a discount for good character and his lack of acceptance of his offending here counts against any discount for remorse. Mr Havea needs to understand that Ms Prutsiriporn may be alive today if it wasn’t for his decisions. You clearly have a lot of support, Mr Havea, which I am sure will be valuable in learning from this experience. Ms Tu’s advice in particular, I suggest, would be useful. I hope you are able to make a positive change in your life, with the assistance of all that support. But you do need to accept responsibility for what has happened here and learn from it. I am quite sure you can do that if you want to, but you will need to commit yourself fully to doing that.
Mr Vaifale’s personal circumstances
[76] Mr Vaifale is 35 years old, originally from Samoa and raised in West Auckland. His parents have a strong Christian commitment and are supportive of him. He has been in a long-term relationship for about six years. He has worked for various security firms on a casual basis. He has numerous previous convictions between 1997 and 2005 for violent offences. The Department of Corrections reports Mr Vaifale continues to maintain he is not guilty of the manslaughter charge. He is assessed as being of low to medium risk of re-offending and harm to the public. The Department says Mr Vaifale is deeply sorry for the situation he finds himself in and
regrets the shame he has caused his family. But it reports he does not clearly show empathy for Ms Prutsiriporn and the manner of her death and his long term rehabilitation will require a more honest look at his actions. I have also seen a number of letters of support from Mr Vaifale’s partner, siblings and other relatives and a minister of the church in which Mr Vaifale is apparently an ordained deacon. The letters demonstrate Mr Vaifale has significant personal and cultural support. I hope that will help him to get his life back on the rails. I am sure you can do that, with your family’s and community’s support, Mr Vaifale.
[77] The Crown does not seek an uplift for Mr Vaifale’s previous convictions, given their historical nature. Mr Niven, for Mr Vaifale, accepts his personal circumstances will have little impact on the overall sentence but notes his family support remains strong and he shows good prospects for rehabilitation. Mr Kayes and Mr Niven both agree to a discount to the kidnapping sentence in the region of 15 per cent would be appropriate for his guilty plea to that charge.
[78] I agree no uplift or discount on the basis of Mr Vaifale’s personal circumstances is warranted and that a discount of 15 per cent of the kidnapping sentence, or 14 months, is appropriate.
Mr Haurua’s personal circumstances
[79] Mr Haurua is 34 years old, born and raised in Auckland, of Cook Island Māori extraction. He has an on-and-off relationship with his partner of over two years. He had been working as a bouncer. He has no previous convictions. The Department of Corrections reports he accepts full responsibility for the kidnapping offence but maintains his innocence of the manslaughter charge. However, he does appear to appreciate that if he had let Ms Prutsiriporn go, she may have been alive today. Mr Haurua has offered to participate in restorative justice and the Department of Corrections assesses him as genuinely remorseful. It assesses him as at low risk of re-offending but a significant concern regarding risk of harm to others based on his offending here. The Department assesses the key contributing factors towards his offending as involvement with anti-social associates, his decision-making and his
propensity for physical violence. He has expressed an interest in furthering his education and expresses his intention to go straight and never come back to prison.
[80] The Crown submits a discount may be appropriate to reflect Mr Haurua’s lack of relevant previous convictions. Mr Kayes and Mr Tucker both submit a discount of 25 per cent in relation to kidnapping should be allowed for his early guilty plea. Mr Tucker also points to Mr Haurua’s co-operation with police, for which he was threatened while in custody, and his lack of previous convictions. I have seen a letter expressing Mr Haurua’s remorse, saying he had lost his way, expressing his determination to rehabilitate himself and that he no longer associates with gangs.
[81] Mr Haurua’s texts during the offending, which I have already mentioned, were offensively callous. But his expression of remorse is fulsome and it is consistent with his early guilty plea. I think it is genuine. He has offered to participate in restorative justice. I welcome Mr Haurua’s expressed intention to reform his ways and I particularly encourage him to further his education. I do propose to make a discount to Mr Haurua’s sentence for his remorse, his previous good character and lack of convictions, of six months. And I discount his sentence for kidnapping to reflect his early guilty plea of around 25 per cent, as is usual, or 24 months.
Part Five: Minimum Period of Imprisonment
[82] Finally, under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. I can only do so if I am satisfied the period otherwise applying is insufficient for the purposes of holding the offender accountable, denouncing his conduct, deterring others or protecting the community. The minimum period must not exceed the lesser of two thirds of a sentence or 10 years.
[83] The Crown submits I should impose a minimum period of imprisonment of
50 per cent of the end sentence, to reflect the seriousness of this pre-meditated gang- related kidnapping for 22 hours.
[84] At the hearing, Mr Ryan submitted a minimum period is a matter of my discretion but if one is required 50 per cent is appropriate. Mr Leabourn submits that a minimum period is not necessary for Mr Korhomklang if his submissions are accepted that a lower starting point is more appropriate to recognise, he submits, Mr Korhomklang’s lesser role. Mr Cordwell submits a minimum period of imprisonment is not warranted for Mr Sao given his role in the offending and his lack of history of serious violent offending. Mr Kan for Mr Havea submits no minimum period is necessary, for reasons of consistency with the sentences of other offenders in Lucas
and Marshall,15 given Mr Havea’s role in the offending. He says the final end
sentence will be sufficient to deter and denounce Mr Havea’s offending. Mr Niven submits a minimum period of imprisonment is not warranted for Mr Vaifale given he is assessed as having low to medium risk of reoffending, having also entered a guilty plea and being less culpable than other defendants. He submits gang involvement does not require, nor uniformly attract, a minimum period. At the hearing Mr Tucker submitted a minimum period is not required for Mr Haurua given his low risk classification, admission of guilt and lesser culpability than others.
[85] In R v Taueki the Court of Appeal stated that:16
In cases of serious violence, where denunciation and deterrence are both important sentencing values and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.
[86] Given some of the statements to Corrections about the offending it seems that some of the offenders might not recognise the seriousness of this offending. But other New Zealanders will see this as drug dealers contracting with a gang to kidnap a small middle-aged woman under threat to her and her family and keeping her in conditions that caused her such fear that she attempted to escape, bound, from the boot of a moving car which caused her death. This is completely unacceptable. In light of the seriousness of the offending and the need to denounce and deter anything similar happening in the future, I impose a 50 per cent minimum period of
imprisonment on all the sentences for the totality of the offending.
15 R v Lucas, above n 10; R v Marshall, above n 9.
16 R v Taueki, above n 1, at [57].
Sentences
[87] Mr Seng Lek Liev, please stand. I order that:
(a) your previous release-on-conditions sentence is ended;
(b)on the charge of manslaughter, you are sentenced to imprisonment for five years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(c) on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for
12 years and four months with a minimum period of imprisonment of six years and two months.
[88] Mr Aphichart Korhomklang, please stand. I order that:
(a) on the charge of manslaughter, you are sentenced to imprisonment for five years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(b)on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for
10 years and eight months with a minimum period of imprisonment of five years and four months.
[89] Mr Sodarith Sao, please stand. I order that:
(a) on the charge of manslaughter, you are sentenced to imprisonment for five years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(b)on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for
nine years and four months with a minimum period of imprisonment of four years and eight months.
[90] Mr Luigi Havea, please stand. I order that:
(a) on the charge of manslaughter, you are sentenced to imprisonment for four-and-a-half years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(b)on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for
10 years and three months with a minimum period of imprisonment of five years and one month.
[91] Mr Tafito Masi Vaifale, please stand. I order:
(a) on the charge of manslaughter, you are sentenced to imprisonment for four years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(b)on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for seven years and 10 months with a minimum period of imprisonment of three years and 11 months.
[92] Mr Joseph Haurua, please stand. I order:
(a) on the charge of manslaughter, you are sentenced to imprisonment for four years, which is to be served concurrently (at the same time) with your sentence for kidnapping;
(b)on the charge of kidnapping, uplifted and adjusted as I have explained to reach your overall sentence, you are sentenced to imprisonment for six years and six months with a minimum period of imprisonment of three years and three months.
[93] Counsel does anything arise from any of that? [No.]
[94] Please stand down.
Palmer J
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