R v Niania
[2020] NZHC 241
•21 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-091-002643
[2020] NZHC 241
THE QUEEN v
WADE EDWARD NIANIA
Hearing: 21 February 2020 Counsel:
S A H Bishop for the Crown
I M Antunovic for the Defendant
Sentencing:
21 February 2020
SENTENCING OF DOOGUE J
[1]Mr Niania you appear for sentence on the following charges:
(a)manslaughter;1
(b)kidnapping;2
(c)possession of methamphetamine for supply, and3
(d)driving while disqualified.4
1 Crimes Act 1961 s 171; maximum penalty is life imprisonment.
2 Crimes Act 1961 s 209(b); maximum penalty is 14 years imprisonment.
3 Misuse of Drugs Act 1975 s 6(1)(c); maximum penalty is life imprisonment.
4 Land Transport Act 1998 s 32(1)(a); maximum penalty is three months imprisonment or a
$4500 fine. It carries a mandatory six-month disqualification.
R v NIANIA [2020] NZHC 241 [21 February 2020]
[2] Before I describe the sentencing process and your sentence, I will outline the facts from which these charges have arisen.
[3] Your victim, Mr Ula, had in his possession five ounces of methamphetamine. You arranged to purchase the methamphetamine off Mr Ula and another person, Mr Funaki (although unbeknownst to Mr Ula you had only three hundred dollars with which to purchase the methamphetamine). You and Mr Ula arranged to make the transaction on the afternoon of 7 October 2018, at the Waitangirua Mall in Porirua.
[4] Between 3.45 pm and 3.50 pm on the 7 October 2018, you and another person travelled to the Waitangirua Mall in a black Mercedes. Mr Ula and Mr Funaki drove to the meeting point, travelling in a Mazda RX8.
[5] At the meeting point, Mr Ula exited the Mazda RX8 with the methamphetamine and climbed into your Mercedes through its rear passenger door. He handed the methamphetamine to you. A disagreement occurred over payment. You drove out of the carpark with Mr Ula in the back seat of your Mercedes. Mr Funaki followed in the Mazda RX8. You drove a short distance to the intersection of Niagara Street and Warspite Avenue. At the intersection, your Mercedes and the Mazda RX8 separated. Mr Ula then realised his situation and asked you to stop the car. Instead you accelerated, putting distance between you and Mr Funaki in the Mazda RX8.
[6] You drove at speed for around 700 meters. As you approached a roundabout at the intersection of Warspite Avenue and Ompapere Street, Mr Ula attempted to escape by opening the car door and preparing to jump out onto the road. Meanwhile Mr Funaki was accelerating to catch up with you.
[7] You did not slow down while travelling through the Ompapere Street roundabout, travelling at a speed in excess of 70 kilometres per hour. You then began overtaking other vehicles and maintained your speed. Mr Ula moved half way out of the Mercedes door, facing the direction the car was travelling in. He had his right hand on the open car door and held onto the car’s doorframe with his left hand. His grip of the car door was hindered by still having the methamphetamine in his hand. His feet
remained in the car. The other passenger in your car tried to grab Mr Ula’s feet. Due to Mr Ula’s weight (127 kilograms), the Mercedes velocity and the side to side movements caused by your overtaking manoeuvres, it was difficult for Mr Ula to maintain his grip.
[8] After travelling through the roundabout, your Mercedes drove for 600 more meters at speed, before Mr Ula lost his grip and fell onto the road. He fell on his head which caused massive skull fractures and uncontrollable brain swelling. Even so, he tried to get back on his feet before losing consciousness and falling back onto the road. He lay on the road, with the methamphetamine bag in his hand, as members of the public ran to assist him.
[9] You then turned the Mercedes around and returned to where the Mr Ula lay injured. You got out of your car, ran over and took the bag of methamphetamine from Mr Ula’s hand. When you were challenged by a member of the public you yelled, “he stole this from me” before getting back into your Mercedes and driving away. Mr Ula died later.
[10] Turning to the sentencing process, I will follow three steps.5 First, I will set a starting point for your offence, which involves an assessment of the gravity of the offending, including any mitigating or aggravating features relating to the offence. Second, I will adjust the starting point with reference to any personal aggravating and mitigating factors. Finally, I will apply a discount for your guilty pleas.
Purposes and principles of sentencing
[11] Section 7 of the Sentencing Act 2002 (“the Act”) provides the purposes for which a court may sentence a defendant. The relevant purposes of sentencing which apply to you are to denounce your conduct6 and to deter you and any other person from committing the same or a similar offence.7 Mr Antunovic further submits the
5 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2011] NZCA 360 at [60].
6 s 7(e).
7 s 7(f).
need to assist you in your rehabilitation and reintegration into society is an important purpose I should consider in my decision.8
[12] Section 8 of the Act requires me to take into account a range of principles in sentencing you. Amongst those principles is the need to impose the least restrictive outcome that is appropriate in these circumstances and this is of utmost importance.9
[13] There is no tariff or guideline decision for manslaughter because the circumstances of the offence vary so greatly.10 Sentencing must be instead tailored to the culpability of the particular offending.
[14] Importantly, in manslaughter cases involving vehicles, courts have drawn a distinction between cases of manslaughter involving reckless driving and cases of assault, where a car is used as a weapon.11 Your case falls into the former category. I was referred to a number of cases involving vehicular manslaughter. But none of those, in my view, were sufficiently comparable to your situation because there are particular aggravating features of your offending which make your offending more serious than those cases that were referred to me.
[15] The more typical examples of vehicular manslaughter involve a combination of speed, poor driving and alcohol. But what stands your case apart is the surrounding circumstances of the soured drug deal and the kidnapping of Mr Ula. I accept that you did not intend to kill Mr Ula, but you did intend to seize his methamphetamine and kidnap him in order to do so. Your actions created the situation where Mr Ula endeavoured to escape from a moving car. You then deliberately continued to drive in an evidently dangerous manner, even after Mr Ula was outside of the vehicle holding on to it. Your dangerous driving was part of an orchestrated plan to secure the methamphetamine. Your actions in returning to remove the methamphetamine from Mr Ula’s hand as he lay on the road fatally injured shows a high degree of callousness. Finally, at the time of this offending you were disqualified from driving.
8 s 7(h).
9 s 8(g).
10 R v Witika [1993] 2 NZLR 424 (CA) at [439]; R v Edwards [2005] 2 NZLR 709 (CA) at [14].
11 For example, in the latter type of class of case see R v Haufano [2014] NZHC 1201.
[16] Given these features, the Crown submits – and your Counsel concedes – that the starting point in this case should be no less than eight years imprisonment. I agree. This starting point is global and appropriate for all charges in their totality.
[17]I come to the harm to the victims other than Mr Ula himself.
[18] They are Mr Ula’s mother, father, siblings, partner, and children. It is unnecessary for me to say anything about the consequences of killing a person and the effect this has on their families. There is a statement from Mr Ula’s mother who has recorded with brevity and dignity the anguish for her and the wider family of losing their loved one. The loss of enjoyment of life and opportunity for all the wider family is heart breaking. Nothing you nor I can do will ameliorate any of that tragedy.
Personal circumstances
[19] The second step in determining the appropriate sentence is to consider whether “overall the crime is aggravated or mitigated by [your] particular personal circumstances such that sentence to be imposed should be higher or lower than the starting point”.12
[20] You have previously offended and you have a number of previous driving offences, namely operating a motor vehicle causing a sustained loss of traction in 2018, driving with excess breath alcohol in 2007 and driving while suspended in 2005 and 2007. You have two previous convictions for possessing drug utensils (2009, 2018). You have a number of convictions for violent offending in the family violence context. The Crown submits that a modest uplift is appropriate to reflect your previous offending. You have never been sentenced to imprisonment before and your last more serious offending occurred back in 2010. I resist the Crown’s request for an uplift in those circumstances.
[21] As for personal mitigating factors, as the pre-sentence and cultural reports confirm, you have had an upbringing which has featured a life entrenched in a gang environment where you were exposed to drugs, alcohol and violence. The trauma and
12 R v Mako [2000] 2 NZLR 170 (CA) at [179].
neglect you have suffered as a result of your upbringing is no doubt the root cause of your offending as an adult. But, as the cultural report writer notes, many of your relatives who have had similar deprivations have elected to live their lives without offending. This, as submitted by the Crown, is significant in terms of the discount exercise.
[22] It is to your credit that while in prison on remand for more than the last past 12 months you have reflected on your life and formed a desire to turn your life around. Despite the Crown’s submissions, I am persuaded from the material before the Court that you do wish to turn your life around and that is a genuine and sincere desire. It is to your credit that you have engaged in counselling whilst on remand and that you wish to continue your involvement with the Taeaomanino Trust. You have completed a first aid course and commenced a parenting course whilst in prison.
[23] In addition, I have no doubt that you have a dependence on cannabis and methamphetamine. I therefore agree with Mr Antunovic that some credit is warranted for your personal mitigating factors. I consider a 15 percent discount for personal mitigating factors, including your personal background, is appropriate.
[24] The pre-sentence report writer was clear in her view that you lack remorse and are only concerned what the consequences of this offending are in terms of your own life.
[25] I have had the benefit of reading your letter to the Court and a letter from your sister-in-law. I have also considered the Taeaomanino Trust report and the cultural report. I note your willingness to attend a restorative justice meeting. They persuade me that even if it is somewhat later than it ought to have emerged you are now remorseful and are now thinking about the effects of your offending on Mr Ula and his family. So, for that reason I will give you a small discount for your remorse of five percent.
Guilty plea
[26] The final step in the sentencing process is to acknowledge your guilty pleas by way of discrete discount.13 Your guilty pleas were entered relatively late in the process but that was as a result of an amendment of the charge from murder to manslaughter. As noted by the Supreme Court in Hessell v R14 the Crown’s acceptance of a manslaughter plea in exchange for dropping a murder charge can be a concession in itself. Giving full guilty plea credit in such circumstances may not properly reflect the offending and lead to a double benefit. The Crown submits a discount in these circumstances of between 15 and 20 percent as appropriate and your Counsel accepts that 20 percent is appropriate in the circumstances. I consider your guilty pleas do warrant a discount of 20 percent.
[27] After taking into account a starting point of eight years imprisonment and deducting a 15 percent for personal mitigating factors (15 months), five percent for your remorse (four months) and a discount of 20 percent (16 months) for your guilty plea, I come to an overall sentence of five years and one month imprisonment.
[28] I may disqualify you from driving in respect of the manslaughter charge.15 And if I do, I may disqualify you from driving for any period I deem fit after your release from prison.16 I consider a disqualification is appropriate in this case given the nature of your driving that day and the extent to which it put other members of the public at risk and causing as it did the death of Mr Ula.
[29] I have been referred to a number of cases in order to set a disqualification period. Your Counsel has quite rightly pointed out that any period of disqualification post release is likely to affect your chances of employment. I take that into account in disqualifying you for a period of three years, six months post release from prison.
13 See Hessell v R [2010] NZSC 135.
14 [Find reference]
15 s 124 of the Sentencing Act.
16 s 125 of the Sentencing Act.
Conclusion
[30] On the manslaughter, kidnapping and possession for supply charges you are sentenced to five years, one month imprisonment to be served concurrently. On the manslaughter charge you are also disqualified from holding or obtaining a motor vehicle driver’s licence for a period of three years, six months post release from prison.
[31] The manslaughter and kidnapping convictions require me to give you a warning of another serious conviction. You will also be given a written notice outlining these consequences which lists the “serious violence” offences that apply in these circumstances.
[32] If you are convicted of any serious violent offence other than murder committed after this warning and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.
[33] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the judge must sentence you to a minimum term of imprisonment.
[34] On the driving whilst disqualified charge, you are disqualified from holding or obtaining a motor vehicle driver license for a period of six months commencing on your release from prison.
Doogue J
Solicitors:
Crown Solicitor, Wellington