R v Motuliki HC Auckland CRI-2009-004-3906

[2011] NZHC 1580

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-3906

CRI-2010-004-19434

REGINA

v

OFA MOTULIKI

Hearing:         26 July 2011

Counsel:         W E Andrews for Crown

G J Newell for Prisoner

Judgment:      26 July 2011

SENTENCING REMARKS OF RODNEY HANSEN J

Charges:  Sentenced Attempting to obstruct the course of justice  Imprisonment 1 year 6 months Possession of a firearm  Imprisonment 1 year 1 month Possession of explosives

All sentences to be served cumulatively for 2 years 7 months.

Solicitors/Counsel:

Crown Solicitor, Auckland

Email:   [email protected]

Graeme Newell, P O Box 105444 Auckland 1143

Email:   [email protected]

R V OFA MOTULIKI HC AK CRI-2009-004-3906 26 July 2011

Introduction

[1]      Mr Motuliki, you appear for sentence on three charges which arise from two unrelated incidents.  You pleaded guilty in the Auckland District Court on 15 March this year to two counts of possession of a firearm and possession of explosives.  On

2 May 2011, you pleaded guilty to attempting to obstruct the course of justice.

Facts

[2]      The charge of obstructing the course of justice arises out of a tragic event which occurred in Paremoremo Prison in March 2009.   You shared a cell with another inmate who, together with two other inmates, has since been convicted of the murder of Tue Fa’avae.  This was an execution-style killing carried out in the prison by members of “The Crips” gang, apparently in retaliation for an earlier assault by the victim on a fellow gang member.

[3]      Much of the planning for the murder took place by way of text messages and phone calls on the cellphone which you concealed in your television set.   The set was seized by prison authorities because it was noted that the tamper sticker had been interfered with.  You asked a prison guard to assist you with the return of the television set.  You told him that it concealed the cellphone which contained (and I quote what you are said to have told the prison officer) “stuff that would implicate the boys with the murder that happened upstairs”.  You said you wanted to retrieve the phone so that police would not discover that you were in possession of it.  An analysis  of the phone  revealed  text  messages  discussing or commenting on  the planned murder.  You were a party to some of them.

[4]      The firearms offending took place after you had been released from prison On 24 August 2010 you were visiting your aunty’s place in Glen Innes.  You had been acting strangely, according to your aunty and uncle.   At about midnight you went to sleep on a couch in the garage.  Your aunty went to the garage to check on you and she found you asleep on the couch with a rifle lying across your chest. When the police searched the garage the following day the rifle was found concealed under a carpet.  It was loaded with a hollow point round in the barrel.  When you

were processed following your arrest, two live rounds identical to the round found in the barrel were located, concealed in a notebook that was in your possession.

Personal background

[5]      I have learned a great deal of your family background, your upbringing and your personal circumstances from three pre-sentence reports that are on the file and a psychological assessment that was ordered to be provided when you appeared in the District Court.  I am told that was sought by your counsel, Mr Newell, and supported by the Crown because of concerns about the circumstances in which your offending had occurred.

[6]      You are a 23-year-old man, born in New Zealand of Tongan parents, the youngest  of four brothers and  a sister.    Your upbringing was  described  by the psychologist as “very unstable, violent and insecure”.   The family home was characterised by parental alcohol abuse and domestic violence.  You described your childhood as “hard and painful”.

[7]      Your father left the family when you were aged 13.  You continued to feel anger and resentment towards him although, according to some accounts, you have been trying to repair your relationship with him and he is attempting to reconcile with your mother.

[8]      Your unstable and violent early years and the conflict between your parents has  given  rise  to  what  the  psychologist  describes  as  a  “parental  alienation syndrome”, in which parents use their children as a battleground in their ongoing disputes with each other.  That, and the violence and substance abuse modelled by your father, no doubt contributed to early dysfunctional behaviour including petty crime and, by the age of 15, heavy alcohol use.

[9]      You left school at the fifth form.  You first appeared in the Youth Court at the age of 15.  Since then, you have accumulated 22 convictions.  Your offending has  included  dishonesty,  driving with  excess  alcohol  and  a number of violence offences.  The most serious was a conviction involving the use of a firearm.  There is

some dispute as to precisely what the charge was.   It was associated with two charges of wounding with intent and you were, in 2008, sentenced to a term of three years’ imprisonment on those charges.   You were serving that sentence when you became involved in the death of the rival gang member in Paremoremo.  Mr Newell tells me that, as a result of that homicide, you ended up serving the balance of your sentence in lock-down conditions and completed the entire three year sentence.

[10]     As I have mentioned, that offending had gang associations which you have said continue.   In addition to The Crips gang – which you describe as “like my family” – you joined the “Killer Beez” gang and carry their tattoo on your shoulder.

[11]     You are described by the prison authorities as a “handful” as a prisoner – non-compliant, immature, angry when you do not get your own way, and manipulative.  You have been disciplined on a number of occasions, including once for being found in possession of a sharp object in your cell.

[12]    You have acknowledged alcohol and drug issues, including the use of methamphetamine.  You have indicated some interest in addressing your substance abuse, although your motivation is described as “ambivalent”.   You have also acknowledged some interest in counselling to address behavioural issues.  You have a partner and a baby daughter who was born while you were in custody.  You have said that your daughter is your primary incentive for keeping out of trouble in the future.

[13]     It is regrettable that during the lengthy period that you spent in prison, you received no counselling or rehabilitative support of any kind.  That appears to have been attributable, at least in part, to the restrictive conditions in which you were held following the homicide.

[14]     There is now a strong recommendation from the psychologist, supported by both the Crown and your counsel, that you be given the opportunity to engage in rehabilitative programmes during the sentence you now serve.  I will say something more about those later.

Sentencing

[15]     It is accepted that cumulative terms of imprisonment are warranted because the offending is different in kind and unconnected.   I will therefore consider separately the sentences for the two sets of offending, and then consider whether the cumulative end sentence properly reflects the totality of your offending.

Wilfully attempting to obstruct the course of justice

[16]     The circumstances in which the offence of wilfully attempting to obstruct the course of justice occurs vary so widely that there is no tariff for sentencing.  Each case must be considered according to its own facts.  The more serious offending in this category often concerns intimidation of or threats to dissuade witnesses from giving evidence.   Those sorts of cases can attract sentences of up to three years’

imprisonment.  They are discussed in R v Hillman.[1]    Cases in which attempts have

been made to destroy or conceal evidence have tended to attract significantly lower starting points – for example, R v Lyndon,[2] where a starting point of 18 months was used for assisting an accused to evade capture.   Another decision of Lang J, R v Duff,[3]  is also helpful.   That was a charge of being an accessory after the fact to murder, which also involved providing assistance to an accused in order to avoid capture.  Once again, a starting point of 18 months was used.

[1] R v Hillman [2005] 2 NZLR 681.

[2] R v Lyndon HC Hamilton CRI-2006-419-167, 30 March 2007, Lang J.

[3] R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010, Lang J.

[17]     I consider your culpability is somewhat less than the offenders in those two cases as your offending involved concealing material evidence, rather than positively assisting a fugitive to evade justice.

[18]     The case that my researches have been able to locate which is closest on its facts  is  R  v  Daikee,[4]   (HC  Christchurch  CRI-2005-009-11878,  27  July  2006, Chisholm J) where the prisoner helped to destroy a baseball bat used as a weapon in

a  murder  and  removed  an  identifying  sticker.    A  final  sentence  of  six  months

imprisonment was imposed.  There were a large number of mitigating factors which indicate that the starting point would have been at least 12 months.

[4] R v Daikee HC Christchurch, CRI-2005-009-11878, 27 July 2006, Chisholm J.

[19]     Mr Newell, on your behalf, accepted that the starting point suggested by the Crown of between 15 and 18 months is appropriate.  It is an aggravating feature that you attempted to suppress important evidence relating to offending of the most serious kind, but I do not consider a starting point of more than 15 months is warranted.  The only mitigating factor is your guilty plea.  You entered a plea on the eve of your trial, although admittedly to a different charge from the one you were originally facing.  The Crown suggested a discount of 10 per cent.  I am inclined to increase that slightly to achieve a discount of two months, which would leave a sentence of one year and one month’s imprisonment on the charge of wilfully obstructing the course of justice.

Firearms offending

[20]     As with the previous charge, there is no tariff for firearms offending as the circumstances can vary so significantly.  A recent decision of the Court of Appeal, Torea v R[5]provides useful guidance.  In that case, a starting point of two years six months was approved where the appellant had been found, following a disturbance, in possession of a pistol with three bullets in the chamber and the safety catch disengaged.   One bullet was lined up in the firing position.   The Court in Torea

found the Judge had correctly identified aggravating features as the fact that the firearm was loaded and ready for use;  the appellant kept it loaded and at his side while awaiting the arrival of the police;  a relatively serious weapon was involved; there were gang overtones to the offending;  and there was potential for the use of the weapon in that context.

[5] Torea v R [2011] NZCA 96.

[21]     The Court referred to other decisions of the Court of Appeal in which starting points of two years were adopted in not dissimilar circumstances:  R v Fonotia[6] and

R v Richardson.[7]In Fonotia, four different weapons were found in the context of drug dealing.  In Richardson, two firearms were involved.

[6] R v Fonotia [2000] NZCA 188.

[7] R v Richardson CA250/02, 25 March 2003.

[22]     These  cases  indicate  to  me that  a  starting point  in  your case  should  be somewhat less than two years.  A starting point of 18 months was adopted in R v Miller,[8]in which the prisoner was found in possession of a semi-automatic weapon and a box of ammunition.   That case seems to me to provide the most helpful guidance.   Although your firearm was loaded, there is no indication of any expectation  that  it  might  be  used.    The  link  with  gang  activity  is  speculative. I propose to adopt a starting point of 18 months.   That should be uplifted to take account of your previous serious offending involving the use of a firearm.  I consider

three months is appropriate, with a further uplift of one month to take account of the fact that when the offending occurred you were on bail awaiting trial.  That takes me to an end point of one year and ten months.

[8] R v Miller HC Hamilton CRI-2007-419-138, 28 February 2008, Harrison J.

[23]     A guilty plea was entered at the first callover in the Auckland District Court. A discount of 20 per cent is suggested by the Crown, somewhat less by the defence. Four months in my view is appropriate, reducing the end sentence to one year six months’ imprisonment.

[24]     The cumulative sentence would be one year and one month and one year and six months, giving a total sentence of two years and seven months’ imprisonment. That seems to me to appropriately reflect the totality of your offending.

Rehabilitation

[25]     Mr Motuliki, as I said before, both the Crown and Mr Newell speaking on your behalf have supported the psychologist’s recommendation that you be given the opportunity to undergo counselling.   And, notwithstanding some of the negative behaviour that I have earlier referred to, there are some encouraging signs that you could respond positively to special rehabilitative programmes.

[26]     There are indications that you have some insight into your offending.  It is clear that your substance abuse issues are going to have to be addressed if you are going to make any progress once you get out of prison.  There are programmes also which will give you the opportunity to look at the root causes of your offending. They obviously include your association with gangs, whose influence on your life to date has brought you only trouble.  You have a supportive partner who is present in Court.  You have a baby daughter.  As counsel have said, you now have a great deal to live for, and you have expressed the hope that you will be able to support your daughter and provide her with the sort of parenting that for much of your own life you did not receive.

[27]     I am encouraged by what I have heard, Mr Motuliki.  There does seem to be potential for you to change your ways.   If you do not - if you do not accept the causes of your offending, if you do not deal with your substance abuse problems, if you  do  not  cut  your  old  gang  associations  -  then  I  am  afraid  Ms  Andrews  is absolutely right in quoting your other co-offender’s probation report, your life will just be thrown “down the toilet”.

[28]   So I am going to make a strong recommendation in support of the recommendations of the psychologist, and that is that you be referred to a Departmental psychologist for individual intervention in preparation to address your violent offending in a special unit rehabilitative programme.   I support also the suggestion  that  non-association  with  known  criminal  peers  will  need  to  be considered as a condition to release with the primary goal, or prerequisite, to engage in offence-related treatment.   What that is saying, Mr Motuliki, is that you must accept, in order to benefit from these programmes, that your association with your co-offenders in gangs can only be damaging for you in the future.

[29]     And the second recommendation – which I strongly support – is that you attend and complete an  alcohol and drug counselling programme, preferably an intensive residential-based programme. As Mr Newell has said, it is likely, in fact almost  certain,  I  suspect,  that  in  the  time  remaining  while  you  complete  your sentence you will not be able to complete these programmes.  You may make a start, but you may not complete them, and it will then be for the Parole Board to impose

conditions on your release which will enable you to carry on the work which I hope you will be able to begin while in prison.

[30]     If you are not given these opportunities, or fail to take advantage of them, the future for you looks grim with a continuation of the pattern of recent years of drug and alcohol abuse, negative gang associations, offending and incarceration.

[31]     Would you mind standing now, Mr Motuliki, and I will formally impose sentence on you.

[32]     On the two counts of possession of firearm and possession of explosives, you are sentenced to imprisonment for a term of one year one month.  On the count of attempting to obstruct the course of justice you are sentenced to one year six months’ imprisonment, both terms to be served cumulatively on the firearms sentences, meaning that you will serve a total sentence of two years seven months’ imprisonment.

[33]     I do express the hope, Mr Motuliki, that you will be able to take advantage of the various programmes that are available to you.   It seems to me that you are a young man who has a lot of positive attributes.  You have considerable potential.  As I have said, you have a great deal to live for now.  You should make every effort to turn your life around; otherwise the future looks bleak for you.

...............................................

RODNEY HANSEN J