R v Rangiwhaiao

[2012] NZHC 1751

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2011-070-7718 [2012] NZHC 1751

THE QUEEN

v

MARK ANTHONY RANGIWHAIAO

Hearing:         18 July 2012

Counsel:         D J McWilliam for Crown

M G Dixon for Prisoner

Judgment:      18 July 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Tauranga

Public Defence Service, Tauranga

R V RANGIWHAIAO HC TAU CRI 2011-070-7718 [18 July 2012]

Introduction

[1]      Mark Anthony Rangiwhaiao, you have pleaded guilty on arraignment this morning, following a sentence indication, to one count of murder.  On that charge you are convicted.

[2]      Conviction on that charge brings you within what is called the “three strikes” regime.  I am required to give a warning to you.  I do so in the words prescribed by Parliament.

[3]      Given your conviction for murder, you are now subject to the “three strikes” law.  I am now going to give you a warning of the consequences of another serious violence conviction.   You will also be given a written notice outlining these consequences which lists the serious violence offences.

[4]      If  you are convicted of any serious violence offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release.  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.

The facts

[5]      Having outlined those matters, I return to the facts of this particular case.

[6]      On the evening of 6 December 2011, you were at a gathering at 31 Fourth Avenue, Tauranga.   You were there  with  a number of  associates,  including the deceased, Colin Bidois. Alcohol was being consumed in the garage.

[7]      When a packet of cigarettes and a cellular telephone belonging to one of the occupants at the address went missing from the garage area, a search was begun to

locate them.  The packet of cigarettes was found in the deceased’s pocket, as was the cellular telephone.   You became agitated with Mr Bidois for stealing these items. You felt it was a personal slight against you.

[8]      You grabbed Mr Bidois by the throat and pushed him backwards into a bench inside the garage.  You then held him down briefly, while yelling at him for taking the telephone.  You then punched the deceased several times to the head and then man-handled him by throwing him to the ground next to a car parked outside the garage.    Mr  Bidois  ended  up  lying  face  down  on  the  driveway  with  his  arms extended in front of his face.

[9]      At that stage other people tried to prevent you from further attacking the deceased.  However, you broke free from those restraints and stomped heavily on his upper back and neck area, as well as the back of his head.

[10]     Mr Bidois was helped to his feet by others and moved to a nearby carport. You then went along the driveway towards the carport.  Someone saw you in that vicinity and told others that you were “doing it again”.  Mr Bidois was located lying unconscious in the carport with you nearby.

[11]     There was a further incident.  You made a statement which indicated that you wished to finish off what you were doing.  As Mr Bidois began to climb the fence to his address, you punched him on the side of the head, causing him to step backwards off the fence.  You then dragged him backwards through a bush and let him fall to the ground.  The right side of his head was struck on the ground before he ended up lying on his right side.  You then continued to stomp him on the head a further three times.

[12]     Mr Bidois was left lying unconscious on the pavement, where he died.

Personal factors

[13]     As requested by Mr Dixon, on your behalf, I have read a report prepared by a consultant psychiatrist who examined you.

[14]     It is clear that you had a dysfunctional and sad upbringing.   You have a number of features about your past which suggest conduct disorder involving aggression to people, destruction of property, deceitfulness and violation of rules. You also have a history which demonstrates that  you  require increasingly large amounts of alcohol to achieve a desired stimulation and that has had an effect on your behaviour.  Other evidence, including depressive episodes, are discussed in the report.

[15]     You  have  also  expressed  remorse  for  what  occurred  and  have  extended apologies to the deceased’s family.  You have made an offer to meet with them for restorative justice processes, at some time in the future.  Whether they are prepared to engage in a process of that type is entirely for them to decide.  No doubt you will be told if they get to the stage at which they feel they can engage with you on that.

Effect of offending

[16]     You will understand Mr Rangiwhaiao, that while your personal history is relevant to what I have to decide today, my focus must be on the offending, the death of Mr Bidois and the effect it has had on his family.   I have read moving victim impact statements.   I acknowledge the presence of Mr Bidois’ whanau in Court today.  I have taken into account what they have said.  Kia kaha to you.

Sentence

[17]     As I discussed at the sentencing indication, your’s is a case into which the presumptive term of minimum imprisonment is one of 10 years.[1]    I consider that should be increased in order to meet relevant sentencing goals.[2]    Otherwise, the sentence would be too short.

[1] Sentencing Act 2002, s 103(1).

[2] Ibid, s 103(2).

[18]     I am required to hold you fully accountable for the harm you did to the victim and to the community by your offending; to denounce the conduct in which you were

involved;  to  deter  you  and  others  from  committing  similar  offences  in  similar

circumstances and to protect the community from you.  The purpose of the minimum period order is to achieve a greater punishment, denunciation and deterrence than would  be  achieved  by the  normal  period,  having  regard  to  the  factors  that  are relevant.[3]

[3] R v Howse [2003] 3 NZLR 767 (CA) at para [58].

[19]     As I said earlier today, the relevant factors that must be taken into account are these:

(a)      Your  original  and  disproportionate  response  to  the  taking  of  the cigarettes and telephone;

(b)The persistent course of conduct in which you engaged after that; had that conduct stopped at any time before the last attack, death might well have been averted.

(c)      The fact that you continued with the attack over a period of time means that there were elements of premeditation; irrespective of whether you had a rising sense of rage arising out of what had been done.

(d)On the final occasions, you were also attacking a defenceless man, who was in a vulnerable position.

[20]     That, taken in conjunction with your prior convictions for violent offending means that a period of more than 10 years is required by way of minimum sentence. Making allowance of two years for that increase and giving you the benefit of a one year reduction for your guilty plea, the minimum sentence I will impose is one of 11

years.

Result

[21]     Mr Rangiwhaiao, on the charge of murder, you are convicted and sentenced to life imprisonment.  You are to serve a minimum period of 11 years before you are eligible for parole.

[22]     Stand down.

P R Heath J