R v Pairama

[2015] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI--2014-019-4641 [2015] NZHC 2994

THE QUEEN

v

LESLIE MARK PAIRAMA AND

PAULINE TAWHA

Hearing:	26 and 27 November 2015
Counsel:	J Foster for the Crown R Boot for Pairama G Walsh for Tawha
Judgment:	27 November 2015

SENTENCING NOTES OF FOGARTY J

Solicitors:           Almao Douch, Hamilton

R v PAIRAMA AND TAWHA [2015] NZHC 2994 [27 November 2015]

Introduction

[1]      Leslie Mark Pairama, you have pleaded guilty to one charge of participating in an organised criminal group; one charge of burglary; and one charge of unlawful possession of a firearm.

[2]      Pauline Tawha, you have pleaded guilty to one charge of participating in an organised criminal group and one charge of burglary.

[3]      Both  of  you  were  charged  originally  with  other  charges,  including  two charges  of  kidnapping,  aggravated  robbery  and  -  in  the  case  of  Mr  Pairama  - unlawful possession of ammunition.

[4]      A settlement was negotiated between the Crown, yourselves and other parties to this offending.   The consequence is that the charges, to which you have not pleaded guilty, are not being pursued by the Crown and, accordingly, are dismissed under s 147 of the Criminal Procedure Act 2011, on the application of the Crown.

The offending

[5]      In the summary of facts, a co-offender, McCallion, went to an address in Kihikihi.  While at the address he spoke to a female victim who lived at the address and told her there were people looking for her.  At that time he was texting on the phone. A short time later, you both arrived at the address, accompanied by up to five other associates.

[6]      You, Mr Pairama, and your associates were wearing gang patches.  You both entered the address with these associates.  They forced the female victim and two male victims into the lounge room area where the curtains were pull closed.  The victims did not know what was happening and they did what they were told, as they feared for their safety.

[7]      The female victim had her eight month old child with her and when the female victim started to cry, you, Ms Tawha, screamed at her to shut up.   You,

Mr Pairama, introduced yourself to the victims as “Lester Rogue”.  You demanded

the keys to two of the vehicles at the address.

[8]      You, Ms Tawha, verbally abused the victims and demanded the car keys from the female victim.   One of the male victims was sitting on the coffee table in the lounge.  One of your associates kicked him in the head.  The kick caused the male victim’s head to connect with the wall.

[9]      A set of keys to one of the vehicles demanded by you, Mr Pairama, were not at the house.   You, Mr Pairama, then accompanied one of the victims to another address where the male victim uplifted the keys and gave them to you.

[10]     During that period, the offender McCallion, and you, Ms Tawha, remained at the female victim’s home, together with your associates and removed household items and electronic items from the house while the victims remained in the lounge.

[11]     The both of you, and your associates, then left the address with three motor vehicles and a range of household and electronic items.

[12]     Turning to the unlawful possession of the firearm charge, throughout the period of August 2014 to April 2015 you, Mr Pairama, actively evaded the police. The police executed a number of search warrants at addresses associated with you and you featured in a “Police 10/7” television programme as efforts were made to locate you.

[13]     On 9 April this year, the police executed a search warrant at at a property in the Kaimai Ranges.  As part of the search, you were located at a dwelling on the property.

[14]     Located in a tent situated on the property, which you used for sleeping in, was a .22 pump-action rifle.  The rifle contained one empty cartridge in the chamber and five live rounds inside the magazine. A further 144 .22 ammunition rounds were located in a box inside the tent.  In addition, the police also located a police scanner.

Previous criminal history

[15]     Mr Pairama, your criminal and traffic history runs to twelve pages.  You first appeared in the Levin Youth Court in 1985.   Your offending includes traffic offending; driving whilst suspended or revoked; supplying methamphetamine; theft; cultivating  cannabis;  possession  of  a  firearm;  possession  of  ammunition  and receiving of property.

[16]     Ms Tawha, your criminal and traffic history totals 18 pages, including drug offending; breach of conditions of release from imprisonment; theft and traffic offending; and a number of shoplifting convictions.

[17]     This offending was retribution.  It is common ground that the reason for this home invasion and burglary was for you, Mr Pairama, to get retribution for the removal of your personal pet dog by one of the persons in the house.   There is a dispute as to whether the dog had been returned prior to this offending.  The Crown says yes.  Your counsel says no.   Either way, as I explained in the course of oral argument yesterday, the taking of your pet does not in any way count as a mitigating factor for your conduct towards the victims of this offending and their property.

[18]     Ms Tawha, you may sit down.

Structure of the sentence for Mr Pairama

[19]     In the course of the oral hearing, I indicated that I regarded your offending, Mr Pairama, as, by a degree, more serious than the offending of Ms Tawha who would receive a lesser sentence than you, in the order of six months.

[20]     Accordingly,  I  begin  the  analysis  of  the  appropriate  sentence  for  you, Mr Pairama, first and then turn to that of Ms Tawha second.

[21]     There was common ground between counsel before me:

(a)       That the most serious charge, and one which would take the lead sentence, was the burglary.

(b)That   the  organised   crime  charge  was   serious  but,   because  it aggravated the burglary, where it has to be taken into account, it was appropriate that the sentence for participating in an organised criminal group would be concurrent.

(c)      That the totality principle had to be brought into play, the Crown suggesting it could be done by way of reduction of the penalty for unlawful possession of a firearm and that was not disputed by your counsel.

(d)Finally, it was agreed that you were entitled to a discount for your guilty plea.  The difference between counsel as to whether it should be

20 per cent, as your counsel argued, or a significantly lower discount, as the Crown argue.

Comparable cases

[22]     Mr Boot, counsel for Mr Pairama, argued that the Court should be guided as to the starting point by the decision of the Court of Appeal in Heald v R1

[23]     This was considered a “serious” burglary whereby the appellant and three others entered a home, confronted a woman and her son and demanded property. There was also the use of a weapon, whereby a knife “slid out” of the appellant’s sleeve, frightening the victim.   The Court of Appeal held that the District Court Judge made no error in adopting a starting point of two years three months on a charge of burglary.  By way of context, it was common ground between the parties that, in the absence of aggravating features, a normal starting point for a charge of burglary was 18 months.

[24]     The Crown argued in reply that the burglary in this case was considerably more serious and aggravated than in Heald.  In Heald the burglars had not expected to find anyone on the property.  By contrast, this was a deliberate targeting of the

property and of an intent to confront the victims.  Mr McCallion was sent ahead as a

1      Heald v R [2014] NZCA 143.

scout and he texted you and your colleagues after arriving, to let you know the victims were there.   Second, there was actual violence.   One of your associates, described by the Crown as a “foot soldier”, kicked one of the victims in the head. Thirdly, there were steps calculated to frighten the victims.  They were removed to a room and the curtains were drawn.  There were more victims here than in Heald. There was a greater loss.   In this case, three vehicles and household goods.   The offending took place over a longer period of time.   The victims were under your control for two hours, you yourself leaving to get the third vehicle but leaving your associates in place.  Finally, this was an organised criminal group crime.

[25]     I am quite satisfied that these are true distinguishing features and that Heald v R was dealing with offending of a lesser gravity.  Accordingly, the starting point had to be more than two years and three months.

[26]     I am of the view that this was a burglary, with considerable aggravating features, as have been discussed.

[27]     The  Crown  submitted  that,  putting  to  one  side  the  involvement  of  an organised criminal group, this burglary could attract a starting point in the region of three  to  three  and  a  half  years’ imprisonment.    That  starting  point  must  then, however, be uplifted to recognise the seriousness of the involvement of the organised criminal group.  But, given your role as instigator of the offending, during which you recruited and oversaw the involvement of at least six other offenders, it is submitted that an uplift in the region of nine to twelve months’ imprisonment is required.  That would lead to an overall starting point of three years nine months to four years six months.

[28]     The argument of your counsel falls away once I have distinguished the Court of Appeal decision in Heald and have rejected the notion that you were provoked by one of the victims taking your Maltese dog, as I do.

[29]     I conclude that, on the basis of the gravity of the offending, without taking into account your personal aggravating features, the starting point should be four years.

[30]     I have already mentioned, you have a lengthy history of prior convictions. The content of the pre-sentence report records an attitude to offending by you which is characterised by an ingrained sense of entitlement and a determination to seek retribution or revenge, without care of the consequences.   I agree with the Crown that, in these circumstances, an uplift is required.   I uplift the four years by six months to four years six months.

[31]     I turn to the firearm offending.  I accept the defence argument that there is no proven linkage between the possession of the loaded .22 rifle in the tent and any intention to use the firearm to resist arrest.   However, the significance of this offending is that Mr Pairama already has a conviction history, including possession of firearms.  He has lost any expectation that he will ever be given a firearm licence. Possession of the firearm then was in defiance of the law.

[32]     That fact, coupled with his gang history and his behaviour could, the Crown submits, generate a sentence in the region of two to two and a half years’ imprisonment.   However, the Crown submits that having regard to the totality, a cumulative sentence in the region of 12 to 15 months’ imprisonment is appropriate for the possession of the firearm.

[33]     The defence submission is that this is too high and the range of sentence for the firearm should be no more than six months’ imprisonment.  I agree.  This brings the end sentence to five years, before allowing a discount for the guilty plea.

[34]     The only mitigating feature to be found in this is that you did plead guilty.  I received  mixed  submissions  as  to  the  reasons  for  the  delay  in  pleading  guilty. Defence counsel submitted that it was due to the reluctance of the co-offender, McCallion, to enter a guilty plea, that the negotiations were conducted with the whole group.  And, notwithstanding Mr McCallion’s late guilty plea, a discount of

20 per cent was given by Hinton J.2

[35]     The defence sought a discount in the range of 20 per cent.  I think 20 per cent is too high.   I appreciate 20 per cent was given by Hinton J to the co-offender,

2      R v McCallion [2015] NZHC 2334 at [59].

McCallion.   But Mr Pairama was the most culpable of all the offenders and the reason, essentially, why this offending took place.  His plea came just three working days before the trial.  I allow six months which is a little over 10 per cent, which I deduct from the indicative sentence for burglary.

[36]     Factoring in the discount, this results in an end sentence of four and a half

years’ imprisonment.

[37]     Mr Pairama, you are sentenced to four and a half years imprisonment, made up as follows:

(a)       On the conviction for burglary, four years’ imprisonment.

(b)On the conviction for participating in an organised criminal group, four years imprisonment, concurrent with the burglary sentence.

(c)       On    the   possession    of    a   firearm,    six    months’   imprisonment,

cumulative, on the burglary sentence. [38]      Mr Pairama, you may sit down.

Pauline Tawha

[39]     Ms Tawha, please stand.

[40]     As I have described earlier in this sentence, Ms Tawha, you were very much a part of the offending, including verbally abusing the victims and demanding the car keys from the female victim.   Like Mr Pairama, you have an extensive criminal history.

Structure of sentence for Ms Tawha

[41]     Essentially, the Crown argued for a similar sentence because of a similar level of culpability and background of offending.   In this context, they place you squarely as involved in the gang and loyal to the gang.   During the course of the offending, you were referred to by your gang name of “Paws”.

[42]     While you were not the instigator of the offending – that was Mr Pairama – you were very active in the offending and your culpability remained high.  In your case, the Crown submitted that the offending required a starting point in the region of three years four months to four years’ imprisonment.

[43]     Your counsel sought to rely on a Court of Appeal decision of Schaumkel v R.3

The  appellant  in  that  case  was  convicted  of  one  charge  of  participating  in  an organised criminal group; one charge of being a party to the theft of a motor vehicle; and two charges of conspiracy to steal a motor vehicle.   And he pleaded guilty immediately before trial, to one charge of burglary. The context of the offending was a criminal group, of which the appellant was a party, committing burglaries and thefts throughout the Wellington region.  The thefts were particularly from vehicles and burglaries of 24 homes.

[44]     The important material fact in Schaumkel is that no one was at home.   To quote from the judgment:

The second category was burglary of 24 homes during the daytime when the residents were not at home.

[45]     Burglary of empty homes is one thing, premeditated, unlawful entry into a home knowing the residents are there and intending those residents to be terrorised and stolen from, is quite another.   Mr Walsh, quite correctly, did not pursue the relevance of the Schaumkel decision in argument.  Putting that decision to one side, his argument for significantly differentiating you from Mr Pairama, depended upon persuading me that you have genuinely reached a point in your life when you want to make a change, to break away from your pattern of offending.

[46]     To that end, you have written to me a letter which I accept as genuine.   I accept it is genuine because it is supported by eight certificates of achievement of courses that  you have been doing in prison, including particularly a relief drug support programme which you completed on 30 October this year.   Even more importantly is advice that I have received from a mental health clinician working

with you at Auckland Regional Women’s Prison advising the Court that [he/she]

3      Schaumkel v R [2012] NZCA 569.

believes that there is in your case a willingness to change.   That you have now recognised that this cycle of going to prison is not healthy for you or for  your whanau.  However, there is a long road to go. As your clinician says:

We’ve only scratched the surface as far as addressing these issues.

[47]     For  these  reasons  and  for  the  additional  reason  that  you  were  not  the instigator of this offending – Mr Pairama was  –  I intend to give you a lighter sentence than given to Mr Pairama.

[48]     Accordingly,  your sentence, Ms Tawha, is constructed in this  way.   The starting point for both burglary and participating in an organised criminal group is three and a half years, six months less than for Mr Pairama, you not being the instigator in this offending.

[49]     That takes the sentence down to three and a half  years but, as with Mr Pairama, I need to reflect on your continuing criminal activity over many years and add six months.  That takes the sentence back up to four years.  I then allow a special deduction  of  six  months  for  the  efforts  you  are  pursuing  while  in  prison  to rehabilitate yourself and as an encouragement to continue these efforts, with the goal of breaking the cycle of crime when you are released.

[50]     That takes the sentence on the conviction for burglary back down to three and a half years imprisonment.  I then need to allow for a discount for your guilty plea and, like Mr Pairama, I propose to allow you approximately 10 per cent.  Without a discount, three and a half years imprisonment is 42 months and I propose to take four months off that and so the end sentence for the burglary for you is three years two months.

[51]     I should also add that in the course of my deliberations overnight, I have considered the Crown submissions on whether there should be a minimum term of imprisonment for both of you.  I have considered that because of the relatively short duration of these sentences, that the matter is best left by this Court to the judgment of the Parole Board as to when you will be released in the usual way.