R v Pahau HC New Plymouth CRI 2008-043-4555
[2010] NZHC 1404
•16 August 2010
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2008-043-4555
QUEEN
v
MATIU JOSEPH PAARAO PAHAU, RANGI RICK BROWN, MAHANA EDMONDS AND ADRIAN FENTON
Hearing: 16 August 2010
Appearances: CE Clarke and J Gurnick for Crown
SW Hughes QC for Accused Pahau
JBM Henderson and WJ Wright for Accused Brown
A Laurenson for Accused Edmonds
J Hannam and SB Sargesson for Accused Fenton
Sentence: 16 August 2010
Sentence: M Pahau
Murder
Life imprisonment, with a minimum term of 17 years’ imprisonment
Participating in an organised criminal group
4 years 9 months’ imprisonment (concurrent)
Commission of a crime with a firearm
4 years 9 months’ imprisonment (concurrent)
Sentence: M Edmonds
Manslaughter
14.5 years’ imprisonment, with a minimum term of 9 years’ imprisonment
Participating in an organised criminal group
3.5 years’ imprisonment (concurrent)
Commission of a crime with a firearm
3.5 years’ imprisonment (concurrent)
Sentence: R Brown
Manslaughter
11 years’ imprisonment, with a minimum term of 5.5 years’ imprisonment
Participating in an organised criminal group
2.5 years’ imprisonment (concurrent)
Commission of a crime with a firearm
2.5 years’ imprisonment (concurrent)
Sentence: A Fenton
Manslaughter
11 years’ imprisonment, with a minimum term of 5.5 years’ imprisonment
Participating in an organised criminal group
2.5 years’ imprisonment (concurrent)
Commission of a crime with a firearm
2.5 years’ imprisonment (concurrent)
SENTENCING NOTES OF ASHER J
R V PAHAU & ORS HC NWP CRI-2008-043-4555 [16 August 2010]
Introduction
[1] Matiu Pahau, Mahana Edmonds, Rangi Brown and Adrian Fenton, you have all been convicted of the crimes of participating in an organised criminal group and committing a crime with a firearm. The first carries a maximum term of five years’ imprisonment and the second ten years’ imprisonment. More importantly you Mr Pahau have been found guilty of the murder of Peri Niwa, and you Messrs Edmonds, Brown and Fenton have been found guilty of his manslaughter. The maximum penalty for murder and manslaughter is life imprisonment, and for murder a minimum term of imprisonment of at least ten years must be imposed. I now set out the facts and in doing so I make findings on some issues.
Facts
[2] The victim Peri Niwa had in November 2008 been working for a group of scaffolders based in Kawerau. The group had Mongrel Mob connections in that the leader of the group was connected to the Mongrel Mob. Mr Niwa himself was not a Mongrel Mob member or associate, although through friends and workmates he had associations with the Mongrel Mob. All four of you are patched Black Power members of the Taranaki Black Power gang. That is the predominant gang in the Taranaki area.
[3] The Taranaki Black Power gang had been aware of the presence of the scaffolders in the New Plymouth area and it had been a source of tension. There had been some incidents involving some attacks on Mongrel Mob members by members of Black Power. I heard some evidence about those attacks at trial but I am not satisfied beyond reasonable doubt that it has been shown that any of you were involved in any prior incidents of serious violence or attempted serious violence against the Mongrel Mob. I am however satisfied that you were all aware of the presence of the Mongrel Mob and as Black Power members you were involved in and supportive of the antagonism that was felt and expressed towards the scaffolders in the months leading up to the murder.
[4] On the night of 15 November 2008 a group of the scaffolders, including Mr Niwa and his girlfriend attended a party near the residence of 1A Squire Place. One of the group of scaffolders was wearing a red Mongrel Mob t-shirt and it seems that some people at the party became aware of that. There is nothing to indicate Mr Niwa was supportive of the wearing of that t-shirt. You, Mr Edmonds, had become aware of the presence of the group of scaffolders. Just how this happened is not entirely clear, but there is no doubt that you called the Black Power group together to respond to the presence of the Mongrel Mob at the party. You made the calls. So you all met together at Mr Edmonds’ place with another fifth Black Power member. Mr Pahau you drove to Mr Edmonds’ place in a Ford Falcon which was in your care but was seen as belonging to the New Plymouth Black Power gang.
[5] All five of you got into the Falcon vehicle and drove off. There was a police scanner in the car. You, Mr Fenton, were in charge of guns for your group. You had, I am satisfied, brought a gun and that gun was placed in the boot. I am not able to say for certain what type of gun it was. You, Mr Pahau, had a knife on your person and there was a knife in the glove box of the car. I am satisfied that there was at least one blunt instrument like a baseball bat in the car. I am also satisfied that you were all aware of the presence of a gun and weapons.
[6] The purpose of getting into the car was to find the group of scaffolders and attack them. You drove by the place where the party was taking place but did not stop on the first occasion as there was a police car present. You went and got some batteries for the scanner and some chocolate. You then returned to the place of the party. These events all took place over some period of time and were not rushed or pressured.
[7] By the time you came back the scaffolders were making their way home to
1A Squire Place. When you saw where they were the car did a U-turn and drove up beside the group of scaffolders and you all poured out of the car. At this stage you were at the top of the driveway at 1A Squire Place, the residence of some of the scaffolders. The driveway is approximately 80 metres long and leads to the house. I find when you leapt out of the car, that consistent with the jury verdicts all four of
you had the intention of inflicting serious violence to the scaffolders and to assist each other in doing so.
[8] I find, also consistent with the jury verdicts that you, Messrs Edmonds, Brown and Fenton, knew that a killing was a probable consequence of the carrying out of that purpose. You also know that Mr Pahau was carrying a weapon at the time that he leapt out of the car and began running after the scaffolders. I am also satisfied beyond reasonable doubt that one of the three of you that went down the driveway was holding a blunt instrument like a baseball bat. The Crown has submitted that that person was Mr Brown. However I am not satisfied that it is proven that it was Mr Brown. All that can be said is that one of the three of you who ran down the drive, in addition to Mr Pahau, was holding a blunt instrument.
[9] Mr Emonds, you were the leader. As the scaffolders ran down the drive to escape from the five of you, you leapt out and directed the other four to chase the fleeing scaffolders, saying “Go, go, go”. So you three, Messrs Pahau, Brown and Fenton together with one other, ran after the fleeing scaffolders. You, Mr Edmonds, stayed up by the car on the road and got the gun out of the boot which you held. The drive was dark but led to the house which had some lights on. You Messrs Brown and Fenton ran some way down the drive chasing the scaffolders, but you stopped before you reached the house. I am not satisfied beyond reasonable doubt that you reached the house or the steps or deck as the Crown alleges and I sentence you on the basis that you did not do so. The scaffolders undoubtedly were running very fast, as fast as they could. As it turned out they were literally running for their lives.
[10] You Mr Pahau did not give up the chase as did Messrs Brown and Fenton and the third associate who is not in New Zealand and has not been charged. You were carrying a knife that you have described as having a 14 to 15 centimetre blade. You ran after Mr Niwa and the others to the front of the house and then up the wooden steps and onto the deck. Mr Niwa who was last in the group and following two of his friends ran before you along the deck and round to the back of the house. So did you. Mr Niwa, again following his friends, had run around to the other side of the house opposite to where the deck was. There was a window on that side of the house close to the back corner. It was a window of two parts with a fixed pane at the base
and an opening pane at the top. Mr Niwa’s two friends had leapt through the opening part of the window and into a bedroom. That part of the window was approximately 1.5 metres above the ground so it involved something of a jump and a scramble to get through.
[11] Exactly what Mr Niwa did when he arrived at the window following his two friends was a matter of strong contention during the trial. Your evidence Mr Pahau was that you had not stabbed Mr Niwa as he went through the window but rather that Mr Niwa had turned on you and had attacked you with punches, and that you had stabbed Mr Niwa following that attack. The jury clearly rejected that explanation. You confided to the Crown witness Mr Murray in prison, that you had stabbed Mr Niwa as he was going through the window. I find that that is indeed what happened. Having heard the evidence I am satisfied beyond reasonable doubt that in fact Mr Niwa immediately had tried to follow his two friends through the window. I find that he was halfway into the window with his body partly in and partly out of the house when you caught up with him. He was therefore in an acutely vulnerable position, his head and shoulders and part of his torso on one side of the window and the rest of his torso and his legs still outside the house. This meant that the left side of his chest was exposed to you as you ran up, and with his arms and head being inside the window with the rest of his body outside there was little he could do to defend himself against the blow.
[12] You ran up to Mr Niwa and administered a deep stab wound in the side of his chest that went through his lung and then his heart, his diaphragm and finally into his liver. The wound depth was approximately 14 centimetres. It mortally wounded Mr Niwa. He somehow completed his manoeuvre of getting into the house, or the sheer weight of his body propelled him forward. He fell on to the floor of the bedroom where he died within a very short timeframe. I find that Mr Niwa did not turn on you and that his actions were purely defensive. He was trying to find safety from an attack he had not sought or provoked.
[13] Mr Pahau, you then turned and ran back the way you had come, around the back of the house, across the deck and back up the dark drive. You got to the top of the drive and you drove away with your associates. Mr Brown assisted you in
getting rid of the knife. Your jacket with the patch on it was taken because it had blood on it. You did not acknowledge what you had done or cooperate with the police, or approach Mr Niwa’s family. The first time you acknowledged having administered the fatal blow to Mr Niwa was around the time of the trial.
Victims
[14] I must say a few words about the victim, Peri Niwa. As I have said he was not a Mongrel Mob member or an associate of that gang. He was a slightly built man of peaceable disposition, enjoying a happy night with his friends and girlfriend. I turn to the other victims, Mr Niwa’s whanau. I have received a very eloquent victim impact statement from his joint whanau which also contains a particular statement from his mother. Hearing it read in Court has affected me greatly and I hope that the whanau present will forgive me for not trying to put in my words the terrible sadness and distress they feel at Mr Niwa’s death. He was clearly a good worker, a good son and a good friend who inspired affection and love amongst those who knew him. He was steady but he also greatly enjoyed life, and music was a particular part of that. With his good working ability and his steadiness he had a great future ahead of him. His death was an unimaginable tragedy for his family. They are left bewildered that such a terrible death could be inflicted on their son, brother, relative and friend.
Approach
[15] I now deal briefly with the approach I must take to sentencing. The approach is governed by the Sentencing Act 2002. Generally in sentencing I must reach a starting point based on factors relating to the offending and then I must reach an end sentence by considering aggravating and mitigating factors relating to the offender. The process however is somewhat different in relation to sentencing for murder and I will refer to this in a moment.
Submissions
[16] I have received comprehensive and focused submissions from all counsel. The Crown submits in relation to you Mr Pahau that on the murder count I am required to sentence you to life imprisonment and that under s 104 of the Sentencing Act I must impose a minimum term of at least 17 years’ imprisonment. In response your counsel Ms Hughes QC accepts that life imprisonment is the inevitable sentence but strongly contests the need to impose a minimum term of 17 years’ imprisonment. She submits that s 104 does not apply and that a minimum term of less than 17 years is appropriate.
[17] In relation to you Mr Edmonds, on the manslaughter count the Crown submits that it is of the most serious type and that you should receive a sentence of life imprisonment. It submits that a minimum term is appropriate. In the alternative the Crown suggests a starting point of 12 to 14 years’ imprisonment for you, uplifted by an extra one or two years’ imprisonment because of your previous convictions to
13 to 16 years’ imprisonment. It submits that a minimum term of imprisonment of the maximum allowed of two-thirds of the full term of sentence is required. Your counsel Mr Laurenson submits however that life imprisonment is not an appropriate or fair sentence. He submits that the correct starting point is eight years’ imprisonment uplifted by one year to nine years and that the minimum term should be half of that, being four-and-a-half years’ imprisonment.
[18] For you Mr Brown the Crown submits that the starting point should be 11 to
13 years’ imprisonment with an uplift of one or two years for your previous convictions to 15 years. It seeks a minimum term of a half to two-thirds. Your counsel Mr Henderson submits that a starting point of seven plus one year being eight years’ imprisonment is appropriate, and he asks for no more than 50 percent for the minimum term.
[19] In relation to you Mr Fenton the Crown ultimately does not seek to distinguish between you and Mr Brown. It submits that the starting point should be the same together with a minimum term. In response your counsel Mr Hannam
submits that the starting point of eight-and-a-half years is appropriate and that there should be no minimum term.
[20] There has been particular mention of the particularly hard time you have spent as defendants on remand, and I have been asked to take that into account in fixing the minimum term.
Mr Pahau
[21] I start with your position Mr Pahau. You are 23 years-old and were 21 at the time of the murder. You have been found guilty of three serious crimes but by far the most serious is murder and I will focus on that. In the course of assessing your position in relation to murder I will take into account your convictions for participating in an organised criminal group and committing a crime with a firearm as aggravating features. Because I will be doing that I will be sentencing you concurrently on those other counts.
[22] Under the Sentencing Act it is my duty to take into account a variety of factors. Of particular importance here is the requirement that is on me to denounce your conduct and hold you accountable for the harm you have done to the victim and the community. It is also a purpose of sentencing to deter you and others, here in particular gang members, from committing the same or similar offences. It is also a purpose to protect the community from you. The Court also must impose the least restrictive outcome that is appropriate in the circumstances.
[23] Under s 102 of the Sentencing Act you must be sentenced to imprisonment for life unless that would be manifestly unjust. Quite rightly that has not been suggested here. So the starting point is that I must sentence you to life imprisonment. That means what it says, you are sentenced to prison for the rest of your life. There is then the issue of the minimum term that this Court imposes. I make it clear, because this is often misunderstood and unfortunately sometimes misreported, that the minimum term is not the sentence. The sentence is life imprisonment and the minimum term is the bottom limit of the period in prison that you must serve. Your release after you have served that minimum term will be at the
discretion of the Parole Board, and there will be hearings in relation to that release and victims will have a part to play in that. So I must now turn to that issue of the minimum term that you will serve.
Does s 104 apply?
[24] Now as I have said, the Crown submits that s 104 applies. It is the section that says that in certain circumstances the Court must, unless it is manifestly unjust, impose a sentence of 17 years as the minimum term. The approach of a sentencing Judge being faced with such a submission has been discussed by our Court of Appeal in the cases of R v Williams[1] and R v Paul.[2] Given the way the submissions and issues have unfolded in this sentencing I approach the task in this way. I will first consider whether any of the factors in s 104 apply. I do this because this exercise will involve a detailed analysis of aspects of your culpability which are
better dealt with in considering s 104 factors, than in any later analysis of aggravating factors. So I will first deal with whether s 104 applies. I will then go on to carry out an orthodox sentencing analysis of aggravating and mitigating factors but in relation to the minimum term. I will then, if it arises, consider whether there is any manifest injustice in s 104 applying and what the ultimate end sentence should be.
[1] R v Williams [2005] 2 NZLR 506.
[2] R v Paul CA496/05 1 August 2006.
[25] The Crown submits that s 104 applies on three different grounds. First, and this is the submission that has been most emphasised, the Crown submits that s 104(c) applies. Section 104(c) applies if the murder involved the unlawful entering into or unlawful presence in a dwelling place. I deal with this first. The issue is whether your actions, Mr Pahau, did involve an unlawful entry into 1A Squire Place or an unlawful presence in 1A Squire Place. Being at the 1A Squire Place property in itself is not enough. The subsection requires the entry or presence to be in a “dwelling place”. I have had detailed submissions on the legal issue of the meaning of s 104(c). This is a sentencing process and not a place for lengthy legal analysis.
However, I must consider the arguments and reach a conclusion.
[26] It has been Ms Hughes’ submission that because you did not go inside the body of the house then s 104(c) does not apply. I have been referred to a number of decisions including R v Clarke,[3] R v Wallace[4] and Rose v Police.[5] R v Clarke related to a different section and context, and the word used was “dwellinghouse” rather than “dwelling place”. The other cases also related to different fact circumstances or provisions. None of them offers any direct assistance on the issues that arise in this sentencing.
[3] R v Clarke [2000] 3 NZLR 354.
[4] R v Wallace HC Wellington CRI-2008-085-2981, 20 February 2009.
[5] Rose v Police HC Wellington AP No. 112/91, 27 August 1991.
[27] The phrase “dwelling place” is not defined in the Sentencing Act. It involves the concept of a place where people reside or dwell. “Dwelling place” can be more than a house and could include a mobile home or a caravan. The way the subsection is worded means the murder must involve the unlawful entry into or unlawful presence in the dwelling place. The word “involve” is general in its meaning, and so is the word “presence”. The words used appear to be deliberately general and lacking in exact precision. The section does not require the murder itself to be committed in the “dwelling place”. What is required is that it “involves’ an unlawful entry or unlawful presence. So a sequence of events which involve a presence in the dwelling place even if only as part of a sequence, for instance where there was a chase through a dwelling, can be captured by the definition. This could be so even if the murder was not committed in the dwelling place itself, but outside when the attacker caught up with the victim.
[28] The question arises as to what the boundaries of a dwelling place are. I have no doubt that it does not include the empty part of a section. Equally I am not satisfied that it is necessarily restricted, as Ms Hughes has submitted, to inside the walls and roof of a house. The issue arises as to whether being on a deck can be an unlawful presence in a dwelling place. Determining such an issue must always be a matter of fact and degree. Here you did not run through the house. However, you did run across the deck. In this case the decks were elevated and on the same level as the living areas and those living areas opened out onto the decks. To get onto the
deck you ran up steps and through a gap in the deck walls and then along the side of
the house on the deck in pursuit of Mr Niwa. The deck itself was enclosed with a wooden wall of over a metre-and-a-half. The deck was a private area and clearly part of the living environment of the house.
[29] Although decks are not as enclosed as rooms they are as much a part of the living environment as the inside of the house. They can be part of the sanctuary that a home offers. This deck had a table and chairs on it and it had been earlier occupied that evening by the residents including Mr Niwa. There were bottles there and an ashtray. If they had been sitting there socialising when the attack occurred I have no doubt that a charge on to the physical environment of the deck by an attacker would have been seen as an invasion of their living area.
[30] In deciding whether this constitutes an unlawful presence it is necessary to look at the full sequence of events. You then proceeded off the deck to run around to the other side of the house and you stabbed Mr Niwa when he was roughly half-in and half-out of the window. You may possibly have stabbed Mr Niwa when he was just inside the window but this is not known and certainly not proven, and I do not act on the basis that you did. But I do have no doubt that if Mr Niwa was inside the house and accessible to you at the end of your chase when you caught him, you would have stabbed him whether he was inside or out.
[31] When I look at these facts on an overview concerning as they do the chase across the deck and the stabbing half-in and half-out of the window, they involve a home invasion. I consider that they involved your unlawful presence in the dwelling place within the ambit of s 104(c). Mr Niwa might well have thought he was safe when he got on the deck and that you might not follow him. Even more so he might have felt safe when he leapt into the open window and had his head in the bedroom. You invaded that sanctuary. He died in the house where it is likely he fell naturally after having been stabbed. I consider that your conduct is the type of conduct that s 104(c) was meant to refer to and in respect of which Parliament intended that there should be a 17 year minimum term.
[32] This case is readily distinguishable from R v Falaniko,[6] relied on by your counsel. That crime had a domestic flavour, and the fact that it may have involved a home invasion was incidental. This case in contrast involves you deliberately hunting a victim onto the dwelling place in which he was seeking refuge, and then stabbing him as he had almost completed his entry into it.
[6] R v Falaniko HC Auckland CRI-2005-092-1194, 16 February 2007.
[33] Even if I had accepted Ms Hughes’ submission and found that s 104(c) does not apply, I would still consider that your actions in chasing Mr Niwa down the drive and onto the deck and then stabbing him as he scrambled for safety through the window constitutes an exceptional circumstance under s 104(i), which is the general provision at the end of s 104. As I have indicated I take it to be a purpose of 104 that the increased minimum term should apply where there is an affront to what all of us would regard as the sanctity of the home, particularly where the chase ends in a home where the victim is killed as he crosses through and into the sanctuary of it. I consider that it would defeat the purpose of the section for it not to apply on these facts. But I do not need to rely on s 104(i) as I find that s 104(c) applies.
[34] The Crown’s second basis for relying on s 104 was that under s 104(d) the murder was committed in the course of another serious offence. Ms Clarke for the Crown identified both the participating in an organised criminal group and committing a crime with a firearm as the two serious offences. It may be that the killing could be seen as part of the participating in an organised criminal group. However, that offence only carries a five year maximum term. “Serious offence” is not defined in the Sentencing Act, but I do not consider the offence of participating in an organised criminal group is sufficiently serious for s 104(d) to apply.
[35] The offence of committing a crime with a firearm carries a maximum sentence of ten years and in my view can be categorised as a serious offence. However, for reasons that I will be referring to shortly, that crime is proven here by the presence of the firearm in the boot in certain circumstances which show prime facie an intention to use the firearm in the course of administering violence. The actions that make up the offence essentially took place at the top of the drive and can be seen as discrete act. They were not an operative factor at the time of the stabbing.
I am not satisfied that the murder was committed in the course of the firearms offence and for that reason I do not consider s 104(d) applies.
[36] The third and final subsection relied on is s 104(g), on the basis that Mr Niwa was particularly vulnerable. I accept, of course, that Mr Niwa when he was partly-in and partly-out of the window was very vulnerable indeed and could not defend himself or escape you as you arrived. However, it is a sad fact that fatal wounds when murders occur often take place when as a consequence of various events the deceased is rendered particularly vulnerable. The most common situation is where as a consequence of a beating the victim is on the ground and defenceless. I do not consider that the section is aimed at that type of vulnerability. Rather the subsection refers to age, health or any other factor, indicating that it is inherent vulnerability such as that of a baby or a sick person that Parliament had in mind. Mr Niwa was an able-bodied man aged 31 and did not fall into this category. I do not consider that s 104(g) applies.
[37] However I have found that s 104(c) does apply. I am required to impose a minimum term of imprisonment of 17 years unless I am satisfied that it would be manifestly unjust to do so. Your counsel submits that it would be manifestly unjust to sentence you to such a minimum term. To help me gauge that submission I propose now carrying out the sentencing exercise that would have been carried out in the event s 104 did not apply. I note when I consider whether a sentence is
manifestly unjust the Court of Appeal decision of R v Williams & Olsen[7] where it
was observed that this is to be ascertained “by reference to the sentencing purposes and principles set out in ss 7, 8 and 9 of the Act.” So I now propose reviewing the aggravating and mitigating factors.
Alternative sentencing exercise
[7] R v Williams & Olsen supra
[38] In relation to this murder there are a number of aggravating factors. There was the use of a knife as a weapon, (s 9(1)(a)). There was the fact as I have found it to be that the offence involved an unlawful entry into or unlawful presence in a dwelling place, (s 9(1)(b)). I recognise that if I am wrong in my assessment of this
under s 104 I would also be wrong in applying this aggravating factor under s 9(1)(b). However, in this type of sentencing exercise I have flexibility under s 9(4) and may find an aggravating factor whether or not it is listed in s 9(1). Whether or not the words of s 9(1)(b) are technically invoked, the fact that you chased Mr Niwa down the drive all the way to the house and then across the deck and round the back of the house and stabbed him as he was climbing into the house is, in my view, an aggravating factor. You invaded the sanctuary of the home.
[39] Ms Clarke also submits that s 9(1)(h) applies, which states that it is an aggravating factor where an offender commits an offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic. The subsection goes on to say “such as race, colour, nationality, religion, gender, sexual orientation, age or disability”. Gang affiliation is not mentioned. Ms Hughes submits that this subsection cannot apply. It is certainly arguable that it is aimed at enduring inherent characteristics. However I note that a number of the factors mentioned can indeed be changeable and impermanent, such as religion or sexual orientation.
[40] I consider that the fact that this offence was committed because you targeted Mr Niwa as a Mongrel Mob member is an aggravating factor under s 9(1)(h). Gang membership is in New Zealand is a common characteristic of some groups. And, sadly, it is commonly an enduring characteristic. In any event, if I am wrong in that I would again identify the targeting as a general aggravating factor under s 9(4).
[41] It is clear is that s 9(1)(hb) applies because as an aggravating factor there is a connection between the offending and participating in an organised criminal group. The difference between 9(h) and 9(hb) is that 9(hb) does not require the participation in an organised criminal group to involve the targeting of another gang. So both the targeting of Mr Niwa as a Mongrel Mob member or associate and your gang involvement are aggravating factors.
[42] It is also an aggravating factor that there was a considerable amount of premeditation involved. I accept Ms Hughes’ submission that the attack was not planned in detail. But nor can the attack in any way be regarded as spontaneous.
There had been a long lead up to this incident over a period of months in terms of the hostility on the part of Black Power members to the scaffolders. There had been a period of quite some time as lead up on that night being a call-up by Mr Edmonds, the meeting at his home, the visit to the site and then the departure because of the police presence, the visit to the service station where batteries and chocolate were purchased and the return to the site. There had also been, before you set out, the deliberate placing of the gun in the boot and indeed, Mr Pahau, you admitted in your evidence that before you left your home you had placed a knife on your person. So I consider that there was premeditation and that this was an aggravating factor.
[43] As yet a further aggravating factor there was your awareness of the presence of a gun in the boot, and your conviction on that charge.
[44] So there are a considerable number of very serious aggravating factors, the two most serious of which I identify as being the gang involvement and gang targeting, and the chase down the drive to the sanctuary of the home. These aggravating factors in the round would, in my opinion, warrant an increase from the ten year minimum term that applies to what I will call standard murders to a minimum term of 15 years’ imprisonment.
[45] In terms of personal factors you have some limited previous convictions, including assault with intent to injure. The conviction of particular relevance is assault with intent to injure in August 2005 when you were sentenced to 220 hours of community work. You also were convicted of resisting police and sentenced presumably concurrently to 100 hours’ community work. These are violence convictions of sufficient seriousness to warrant some modest uplift under s 9(1)(j).
[46] In mitigation I take into account the many things that have been said in your favour and the testimonials that have been provided in support of your position. In your non-gang life you appear to be a well liked and dependable person. You have held regular jobs through your working life. You have addressed me today in Court and you have impressed me as a person of sincerity. Even those who led you into the gang life when you were a boy express regret that you were placed into that environment. I have no doubt that but for your gang involvement you could have led
a happy and worthwhile life. Gangs have ruined that life. I take these positive things about you into account and I balance your past convictions which I have referred to against your rightful claim to good character in relation to your work and non-gang life.
[47] There has also been reference to your youth as you were 21 at the time of the murder. In the context of such a serious and deliberate crime you must be seen as sufficiently mature for there to be no discount for your age.
[48] I also need to consider the issue of remorse. I accept that you were distraught at having killed someone from the time you got back to the top of the drive and more so when you realised who Mr Niwa was and where he was from. However, that was part of your response. I am also satisfied from what I heard in Court that the other part of your response was a sense that you had carried out a killing for the gang and you were entitled to respect for that. When you were speaking to Mr Murray in prison you said that you stabbed Mr Niwa as he went through the window because he was “a dog shit”. You were taking a gang line. You defended the charge against you and alleged that Mr Niwa had attacked you. Until the time of the trial you did not seek to apologise to the victim’s whanau, although I accept entirely that you had expressed your wish to do so earlier through your counsel.
[49] As I have said, I accept the sincerity of the regret you have expressed today. You are very sad that you have killed Mr Niwa. But in the end I cannot describe your feelings as full blown remorse because you do not regret as you should that you ever agreed to take part in this attack. You do not feel remorse for your involvement in a gang which accepts violent crime such as this as part of its culture. I am not sure you fully appreciate just how cowardly your actions were in pursuing a man whom I judge was a lot weaker than you and whom you had at your mercy, and whom you ruthlessly killed.
[50] In your written remarks to me you made the observation that there were ways in which the victims could have avoided the death. To say that indicates to me that you still do not really understand what this is all about. You do not understand that the gang life, the concept of gang pride and entitlement to use violence to maintain
that pride must be dropped. So I cannot give you any credit in terms of sentence for remorse.
[51] Ms Hughes has suggested that a mitigating factor was the conduct of the victim Mr Niwa. I reject that entirely. First, while it may be that Mr Niwa briefly wore a Mongrel Mob shirt in the privacy of his own house at 1A Squire Place, he did not wear it in a public place and did nothing to deserve anger or retribution. At the party he was just sitting talking to his girlfriend and enjoying a drink. Unfortunately one of his friends did wear a Mongrel Mob t-shirt and that was undoubtedly inflammatory. But that was not Mr Niwa. Secondly, I would in any event have grave reservations about determining that the mere wearing of a particular type of t- shirt to a local party was sufficient conduct to be a mitigating circumstance in the event of there being a response of violence. I do not consider that there was any sufficiently provoking act.
[52] So I would have given you some modest credit for your good character, but I would have had to have also taken account your previous convictions. In the end if this was an orthodox sentencing exercise the modest uplift of up to six months for your previous record would be cancelled by the material before me as to your good character.
[53] In considering the minimum term that I would impose in an orthodox sentencing exercise I consider two other recent cases. There is the case of R v McCallum.[8] Like this case that attack was by a Black Power member on a Mongrel Mob member provoked by gang association. The offender had spent part of a day looking for a victim and the attack was a brutal number of blows to the head with a short axe. The starting point there was 14 years. While the blows here were not repeated, the blow you did administer was so savage that there could be little doubt that it would have killed Mr Niwa. The facts I have already mentioned in addition to
gang involvement of, in particular, the chase down the drive, the running across the deck and the killing in the window coupled with other factors such as the premeditation and the presence of the gun in combination make this a more serious case.
[8] R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2010
[54] I have also considered the case frequently referred to by all counsel of R v Wallace where a two-year-old child was accidentally killed by one of three shots fired by gang members in three cars towards a group of rival gang members outside the house in which the child was sleeping. There the end sentence imposed on the person who fired the shots who was convicted of murder was 15 years’ imprisonment, although that involved an element of uplift for past record. I will refer to this case shortly in more detail in relation to manslaughter but I record that the shots were not directed at the child. While the number of shots and the involvement of the gun in the killing were serious aggravating factors not present here, I regard your offending as more serious given the pursuit and intentional killing at the home. So this consideration confirms my view that the appropriate minimum sentence in an orthodox sentencing exercise would have been 15 years’ imprisonment.
[55] I turn to whether in the light of this analysis and other factors it is manifestly unjust for s 104 to apply. I bear in mind that manifest injustice was stated in R v Williams[9] as being likely to apply only in a small number of cases involving special features and an example was given of a mercy killing. Here there are no particular factors like the domestic nature of the attack as seen in R v Falaniko or for instance extreme youth as seen in R v Kriel,[10] where the unusual step of a finding of manifest injustice was taken.
[9] At [57]
[10] R v Kriel HC Whangarei CRI-2008-027-2728, 23 March 2010.
[56] There are the particular aggravating factors that I have been through. This leaves me in no doubt your offending is the sort of offending Parliament had in mind when it enacted s 104 as warranting the imposition of a 17 year minimum term. I therefore decline Ms Hughes’ request that I find manifest injustice. In making this assessment I have taken into account your convictions on the other charges so that the sentences that will be imposed for that offending will be concurrent.
[57] So I return to the 17 year minimum term that I find under s 104 I am obliged to impose. The question is whether there should be any change to that 17 year minimum term. For the reasons that I have set out the personal aggravating and
mitigating factors largely balance out. I have stated that I would not have discounted my starting point if this was not a s 104 situation. In any event it is clear that the
17 years is mandatory unless there are special features indicating manifest injustice. In this regard I refer to R v Parrish.[11]
[11] R v Parrish (2003) 21 CRNZ 571 at [21].
[58] You will therefore be sentenced to life imprisonment with a 17 year minimum term.
Mr Edmonds
[59] Now Mr Edmonds I turn to your position. You are 39-years-old. You are a senior member of Black Power. I am satisfied that you were the senior member involved during the incident, and the leader. On the night in question you were the go-to person in Black Power when there was an alert about a Mongrel Mob shirt being seen at a party. After you got this information you then called four gang members together, three of whom stand in the dock with you. But for your senior position and your decision to call-to-arms Mr Niwa would be alive today.
[60] I believe you made the major decisions that night that led to the chase down the drive. In addition to organising the group I consider that you would have made the call to leave the area when the police car was seen and to go to the petrol station to buy batteries and chocolate, and that you would have made the call to go back and drive up to attack the scaffolders. You were effectively acting as the sergeant-in- charge directing your men. You leapt out of the car when it stopped and told them to go, directing them down the drive. You said “Go, go, go”. You stood watch and pulled the gun out from the boot, ready for action if necessary.
[61] The maximum sentence I can impose is life imprisonment and that is what the Crown asks for. The Crown submits that this is about as serious a case of manslaughter as can arise. Your counsel Mr Laurenson denies this, pointing in particular to the fact that you stayed on the road well removed from the action. There is no benchmark decision in relation to manslaughter. It has been observed in
R v Edwards[12] that the Court of Appeal has deliberately avoided giving any guideline judgment. While acknowledging the general desirability of consistency it has been observed:[13]
This comparative exercise is never easy in manslaughter cases …. So the offending differed greatly; so too do the offenders. In these circumstances, the sentencing Judge must carefully analyse the case before him or her and then proceed, with caution, to compare the case with others.
[12] R v Edwards [2005] 2 NZLR 709.
[13] At [14].
[62] As I have said, counsel have referred to the decisions of R v Wallace and the related decision of R v Challis and Box.[14] The Judge fixed a starting point of ten years for those who were in the cars but who did not shoot the guns. Mr Laurenson strongly submitted that your position was not as serious in terms of offending because there was no involvement as in R v Challis and Box with a gun fired three times, one shot killing the sleeping victim. In particular he emphasised your distance away from the actual stabbing and how you could not have known exactly how events would transpire. The Crown on the other hand emphasises the gang motivation, your involvement as a leader and your holding of the gun at the top of
the drive.
[14] R v Challis and Box [2008] NZCA 470.
[63] The other case that has been referred to is R v Moala[15] where offenders were members of a local street gang who with firearms and other weapons sought out rival gang members. The result was the murder of a rival gang member’s death. Mr Taiala who was not involved in the fatal shooting had himself used the firearm and had shot at a car. He did not hit anybody. The starting point there for Mr Taiala was 12 years’ imprisonment.
[15] R v Moala HC Auckland CRI-2007-404-28, 12 December 2007.
[64] As I consider your position, Mr Edmonds, it is necessary to refer briefly to the role of Messrs Brown and Fenton whom I will come to shortly. There are certain factors common to what all three of you did. I have set out the background facts. You all leapt out of the car intent on attack. You all knew of the presence of the gun. I find consistent with the jury verdict that you all knew that Mr Pahau was armed
with a weapon that could kill. With you, Mr Edmonds, as the leader and providing
support up the drive with the gun, Messrs Brown and Fenton and the two others ran down the drive. Someone was carrying a baton, like a baseball bat.
[65] I bear in mind other decisions in relation to manslaughter, in particular the Court of Appeal decision in R v Jamieson,[16] where six co-offenders who were in a secondary position and not involved in the actual attack were found guilty of manslaughter with a starting point of seven years. There was no use of weapons in that case. Here a knife was used. If there had been no gang involvement or other aggravating factors involved in this killing a starting point in the vicinity of eight
years’ would be appropriate. So with this background I must decide the starting point in your case.
[16] R v Jamieson [2009] NZCA 555.
[66] There are, in my view, a number of serious aggravating factors that take you considerably beyond the eight year starting point I have mentioned, and indeed beyond the starting points in R v Wallace and R v Moala. First there is your gang involvement. You were convicted of participating in an organised criminal group. This is entirely a gang driven attack. I couple that with the fact that you directed your four associates to pursue the scaffolders down the drive towards their home. So your actions involved a deliberate targeting of an opposition gang with serious violence in mind. You sent your associates to invade their property. So when I come back to R v Wallace for those reasons alone I would find your conduct at least as culpable as that of the secondary parties in that case, where there was a ten year starting point. There is also the fact that unlike in R v Wallace this was not a gang confrontation. There was not a fight and there had been no particular lead up and certainly no provocation. It was a decision by your group to impose your authority by serious violence on a group who had been doing nothing wrong.
[67] I turn to other factors about your conduct which lead me to the view that the starting point must be considerably in excess of ten years’ imprisonment. The most important is your leadership role. As I have said, but for your initiation of the attack and direction of it Mr Niwa would still be alive. This must be coupled with the premeditation that I have referred to. Although I have accepted that this was not a
carefully planned attack, nevertheless it was premeditated and there was a deliberate lead up on the night. You were responsible for that.
[68] A further aggravating factor which is also very serious is that you took the gun out of the boot and you held it. You were ready for action. You have been convicted as the principal offender of the firearms charge and I have no doubt that if this was a stand alone charge the sentence would involve a number of years in prison.
[69] So to recap, I find that the gang involvement and pursuit down the drive, factors common to you and the other accused excluding Mr Pahau, would have warranted a ten year starting point. I consider that these further aggravating factors, your leadership role and the use of the gun warrant a further uplift of three years. So that would lead me to a starting point of 13 years’ imprisonment.
[70] I am not however persuaded that these aggravating features warrant a sentence of life imprisonment. There is only one recent case where life imprisonment for manslaughter has been imposed being R v Lory.[17] That was far more serious than the present where the offender had deliberately set alight a sofa and as a result a hotel was destroyed and six people perished. The offender had an extensive list of convictions. So the starting point before I turn to aggravating and mitigating factors relating to you personally is 13 years.
[17] R v Lory [2005] 1 NZLR 462
[71] It is an aggravating feature that you have convictions for violent offending. These have been the subject of careful submissions on the part of your counsel Mr Laurenson. You have two assault convictions, including common assault with a weapon convictions and quite a number of other convictions including wilful damage, speaking threateningly and disorderly behaviour causing violence up to
1993 when you were convicted of manslaughter. I do not have details of the manslaughter but it is common ground that it was a crime of violence. There is nothing to indicate that weapons or gangs were involved. You were sentenced to a term of imprisonment of six years. Since your release from prison in about 1997 you
have been convicted of receiving property (under $500), and while in prison you had two further convictions of receiving property (over $1,000).
[72] It is a most serious matter that you have already been involved in the killing of one person. I have now found that you have led an attack which has resulted in the death of another person. In these circumstances a significant uplift is required in terms of s 9(1)(j). I consider that the appropriate uplift is a further one-and-a-half years, increasing the sentence to 14.5 years’ imprisonment.
[73] The question then is whether there are any mitigating factors. I do not consider that there are. While undoubtedly you regret the loss of life at this point I do not discern from the probation report any real remorse or any willingness to abandon the gang environment. You show no wish to change your way of life. This could mean that you could offend violently again. You do not consider you have a violence problem. So I give you no credit for remorse.
[74] I turn to s 86 and whether I should impose a minimum term of imprisonment and if so for how long. If I am satisfied that the usual one-third period before parole is insufficient to hold you accountable for the harm you have done to the victim and the community, to denounce your conduct and to protect the community from you, I must consider a minimum term of up to two-thirds of the sentence.
[75] I have decided that your leadership of the offenders as part of your senior position in Black Power at the time means you must be held accountable for your pivotal role in this awful killing. The same leadership role and gang involvement coupled with the holding of the gun means that there is a particular need to denounce your conduct. The deliberate arranging of an attack to perpetrate serious violence strikes at the core peaceful values of our society.
[76] Finally, society needs to be protected from you. You are a leader and this is the second killing you have been involved in. You seem to have learned nothing from the first. There must be a risk that you might do it for a third time.
[77] All these factors persuade me that something approaching the two-thirds minimum term that is the maximum that can be imposed under s 86 is required. Only this will sufficiently denounce your conduct, hold you accountable for the terrible deed you have done and protect the community from you. However, I will not go quite that far. Approximately 62 percent of 14.5 years’ imprisonment is a term of nine years’ imprisonment. That will be the minimum term. I appreciate that it is a long minimum term, only one year less than the standard minimum term for murder. For all the circumstances that I have set out I consider it appropriate.
Mr Brown
[78] I turn to your position Mr Brown. You are 40 years-old. You ran down after Mr Niwa and the other scaffolders with the intention of inflicting serious violence upon any one you came across. You did not proceed to the house as I have found. Whether that was because you were outrun or you had a change of heart or did not relish the thought of an actual confrontation, we do not know, but you get the full benefit of not being involved in the actual confrontation. It is not assumed that you reached the house in my assessment of culpability.
[79] I accept the point that Mr Henderson made that you are not to be treated as seriously as you would have been if you had been part of the actual attack. I refer to what I said a short while ago about the Court applying a starting point for a street knife attack where the person was not part of the actual final assault and stabbing of about eight years. However, the starting point for you must be higher than eight years. You are a committed Black Power member and were a willing and enthusiastic participant in the attack. You were part of an organised criminal group. At your age it can hardly be said you were the subject of influence or persuasion.
[80] You knew that there were firearms and weapons. In particular I emphasise the fact that you invaded the property of the scaffolders, chasing them down the drive towards their home. For reasons that I have already set out I consider your culpability to be every bit as serious as the secondary participants in the shooting in the R v Wallace case. In all the circumstances I consider that the appropriate starting point is ten years’ imprisonment.
[81] I turn now to aggravating and mitigating factors relating to you personally. You have a record which in terms of the number of convictions is the worst of the four. Your five pages of convictions includes over the last ten years a number of violence offences of ascending seriousness. You have been convicted of male assaults female, wilful damage, common assault, and in 2007 assault with intent to rob where you were sentenced to one year and three months’ imprisonment. It is a bad record showing a propensity towards violence. However, there is nothing as serious as Mr Edmonds’ manslaughter conviction. In the circumstances I consider the necessary uplift is one year making the starting point eleven years.
[82] I now turn to mitigating factors. You have expressed regret at the death and I have no doubt you do feel that regret. However, I do not discern any genuine remorse. It is a feature indeed of the probation reports in relation to all four of you that none of you show any willingness to abandon gangs or gang values. So I conclude there are no mitigating factors. You will be sentenced therefore to eleven years’ imprisonment.
[83] I turn to s 86 and whether you should receive a minimum term. I conclude that you must. Given the premeditated nature of the crime and the gang involvement it is necessary to hold you accountable for the harm done to the victim and the community. It is also necessary to denounce your conduct in making a gang attack intending serious violence. And your record and commitment to Black Power indicate a need to protect the community from you. You are in terms of what you have done and your record an ongoing danger to society.
[84] However, you did not have the same leading role as Mr Edmonds and therefore a distinction between the percentage of minimum term for him and the percentage for you is warranted. I fix the minimum term in your case at 50 percent which is a five-and-a-half years’ minimum term.
Mr Fenton
[85] I turn finally to your position Mr Fenton. You are 27 years-old. All of what I
have said in relation to Mr Brown’s conduct applies to you. I just repeat the major
features. I find you knew that Mr Pahau had a weapon. I find that you deliberately pursued the scaffolders down onto the property and down the drive. I find consistent with the jury verdict that you intended administering serious violence if you caught them. I find that you knew that a killing was a probable consequence. As I made it clear at the outset I do not regard it proven that either you or Mr Brown were carrying a weapon yourselves. However, it is an aggravating factor that between the three of you there was another weapon being the blunt instrument. So all these features apply to both you and Mr Brown and aspects of them are reflected in your convictions for participating in an organised criminal group and the firearms charge.
[86] However, there is a further aggravating factor about your conduct. You brought the gun to Mr Edmonds’ house. You were the keeper of the guns and when the police raided your house the gun was found there. In the end, of course, the presence of guns did not play a material part in Mr Niwa’s death. For that reason any uplift for this feature is modest. I also note that you were on bail at the time of the offending. For these reasons I fix your starting point six months higher than that for Mr Brown at ten-and-a-half years’ imprisonment.
[87] I turn to aggravating and mitigating factors relating to you personally. You have a record. It involves some past violence, including behaving threateningly in
2008 of which you were convicted and discharged, possession of an offensive weapon in 2007 (convicted and discharged), burglary in 2006 and common assault in
2004, and aggravated robbery in 1998. The longest sentence appears to have been six months, that was on drugs charges and I put that to one side. So a modest uplift is required but less than that required for Mr Brown. That will be six months, which will leave a starting point of 11 years’ imprisonment.
[88] I turn to the mitigating factors. You have denied being present on the night and being involved in the chase or the stabbing throughout. It is your right to take that position, but in the circumstances you cannot make any claim for remorse. There is nothing to indicate any qualities of character that might otherwise mitigate.
[89] I turn to the issue of the minimum term. In the end your sentence is the same as that of Mr Brown of 11 years’ imprisonment. Although there is some distinction
between your position and his which I have mentioned I consider that there is the same need to hold you accountable, to denounce your conduct and to protect the community from you as is the case with Mr Brown. I reiterate that the gang involvement and targeting of another gang member and the pursuit onto private property are particular factors, and in your case the provision of the gun. Your minimum term will therefore be 50 percent which is five-and-a-half years’ imprisonment.
Summary
[90] Could you all please stand. Mr Pahau you are sentenced to life imprisonment on the count of murder with a minimum term of 17 years’ imprisonment. On the participating in an organised criminal group charge you are sentenced to a term of two-and-a-half years’ imprisonment, that term to be concurrent. On the count of having a firearm in connection with an offence you are sentenced to two-and-a-half years’ imprisonment, that term also to be concurrent.
[91] Mr Edmonds, on the manslaughter conviction you are sentenced to
14.5 years’ imprisonment with a minimum term of nine years. On the participating in an organised criminal group charge you are sentenced as the leader to a term of three-and-a-half years’ imprisonment, that term also to be concurrent. On the count of having a firearm in connection with an offence you are also the principal offender and you are sentenced to three-and-a-half years’ imprisonment, that term also to be concurrent.
[92] Mr Brown, you are sentenced to a term of imprisonment on the manslaughter count of 11 years’ imprisonment with a minimum term of five-and-a-half years. On the participating in an organised criminal group charge you are sentenced to a term of two-and-a-half years’ imprisonment, that term to be concurrent. On the count of having a firearm in connection with an offence you are sentenced to two-and-a-half years’ imprisonment, that term also to be concurrent.
[93] Mr Fenton, you are sentenced to a term of imprisonment on the manslaughter count of 11 years’ imprisonment with a minimum term of five-and-a-half years. On
the participating in an organised criminal group charge you are sentenced to a term of two-and-a-half years’ imprisonment, that term to be concurrent. On the count of having a firearm in connection with an offence you are sentenced to two-and-a-half years’ imprisonment, that term also to be concurrent. Stand down.
……………………………..
Asher J
Solicitors:
C Clarke, Auld Brewer Mazengarb & McEwen, New Plymouth ([email protected] ) SW Hughes QC, New Plymouth ([email protected] )
T Bolstad, Barrister, New Plymouth ([email protected] )
B Henderson, Barrister, New Plymouth ([email protected] )
A Laurenson, Govett Quilliam, New Plymouth ([email protected] ) J Hannam, Barrister, New Plymouth ([email protected] )
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