R v Rata
[2022] NZHC 2749
•18 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-004-2185
[2022] NZHC 2749
THE KING v
NGATUPUNA RATA
Hearing: 18 October 2022 Appearances:
A McClintock for Crown
R M Mansfield KC & B Gloyn for Defendant
Sentence:
18 October 2022
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v RATA [2022] NZHC 2749 [18 October 2022]
Introduction
[1] Ngatupuna Rata you appear before the Court today for sentence having pleaded guilty to charges of manslaughter,1 unlawful possession of a firearm,2 conversion of a motor vehicle3 and unlawful possession of a pistol.4
[2] The charge of manslaughter relates to your role in the death of Jonathan Mokoha.
[3] Before I begin today I want to acknowledge the presence of Mr Mokoha’s family in Court. It is clear that all those who dearly loved Jonathan have been deeply affected by his death and I commence my remarks this morning by extending the Court’s sincere sympathy to Mr Mokoha’s family for their loss.
[4] There is nothing that can happen or that can be said that will alleviate the profound grief that is being felt by the family but this sentencing hearing and the sentence that will be imposed will at least provide a waypoint on your pathway towards coming to terms with the tragedy and putting at least this legal proceeding behind you as you move forward in your lives.
[5] Mr Rata, although the maximum penalty for manslaughter is life imprisonment, at the conclusion of this sentencing hearing today I shall impose a determinate sentence for a fixed period which takes account of all four of the charges for which you appear before the Court for sentence on today.
Background
[6]I will start by setting out the facts of your offending.
[7] On 29 March 2021, you and two others unlawfully took a Honda Accord motor vehicle from its owner, a Mr S. You had a starter pistol in your possession and another
1 Crimes Act 1961, ss 171 and 177: carrying a maximum penalty of life imprisonment.
2 Arms Act 1983, s 45(1): carrying a maximum penalty of four years’ imprisonment and/or a $5,000 fine.
3 Crimes Act, s 226(1): carrying a maximum penalty of seven years’ imprisonment.
4 Arms Act, s 50(1)(a): carrying a maximum penalty of three years’ imprisonment and/or a $4,000 fine.
member of your group was wielding a steel pipe. You took the vehicle by intimidating Mr S, but were arrested shortly afterwards. That offending resulted in the charge of conversion of a motor vehicle and the charge of unlawful possession of a pistol.
[8] In relation to those charges on 10 February 2022 you were granted bail to a residential rehabilitation facility.
[9] On 7 April 2022, while you were still subject to bail conditions for that firearms related offending, you visited the home of the victim Jonathan Mokoha who was a friend of yours. Sometime around midnight, and after you and Mr Mokoha had both been smoking methamphetamine you and he were together outside his house trying to re-assemble a dismantled pistol which belonged to one or other of you, or was brought to the address by one or other of you. That fact has not been determined with any certainty, but certainly the two of you had possession of the firearm together that night.
[10] During the process of assembling the pistol you loaded a live round of ammunition into it, and Mr Mokoha knew that you had loaded the weapon. Due to some of the screws around the trigger mechanism being missing, some parts of the firearm were loose, and you and Mr Mokoha used a waist cord to hold the loose parts, or bind the loose parts, of the firearm together.
[11] In the course of the assembly process, the firearm was being held with the barrel pointed towards Mr Mokoha and you were pulling on the waist cord with your teeth. During your handling of the firearm, it discharged and caused the single bullet to be fired and enter Mr Mokoha’s back and fatally pierce his left lung and heart.
[12] You were shocked and concerned of course by what happened and immediately sought help from the emergency services, and you were involved in attempts to render first aid to Mr Mokoha. Ambulance staff and Police soon arrived but tragically Mr Mokoha died at the scene.
[13] You told Police that in anticipation of possibly needing to defend yourself you had, with Mr Mokoha’s assistance, been preparing it for use when it unintentionally and unexpectedly discharged. You said that at the time of the incident you had been
up for days, that is you had been awake for days, and on the night of the incident you had consumed some methamphetamine to keep yourself alert. Mr Mokoha and you had both consumed methamphetamine prior to the incident.
Victim impact statements
[14] In preparing for today’s hearing I have read all of the victim impact statements and they have been read aloud to the Court this morning. It is clear that the effect of the death of Mr Mokoha has been profound. It takes considerable courage for family members to express their sense of grief and loss, in reality in a situation where words are incapable of effectively doing so.
[15] I have taken all that has been said by the victims into account in deciding the appropriate sentence to be imposed.
Sentencing framework
[16] Mr Rata, in sentencing you today I am required to consider and apply the principles and purposes of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. This includes the need to hold you accountable for the harm that you have caused to Mr S, the owner of the vehicle, to Mr Mokoha and to his whānau, and to denounce your conduct, to deter you and others from committing similar offences, to protect the community and ultimately to assist in your rehabilitation. The sentence I impose must also take into account the gravity of your offending and achieve consistency with the sentences imposed in other similar cases of manslaughter. I must impose the least restrictive outcome that is appropriate in the circumstances of this case.
[17] There is no guideline judgment for sentencing in cases of manslaughter. That is because the offence of manslaughter encompasses such a wide variety of circumstances where unlawful acts have led to the victim’s death.5 As your offending did not involve the intentional infliction of serious violence, my sentencing methodology will be relatively straightforward.6 I will first identify a starting point
5 R v Edwards [2005] 2 NZLR 709 (CA) at [14].
6 See Everett v R [2019] NZCA 68 at [24]–[27].
by reference to comparable cases involving sentences imposed for manslaughter. That is the lead offence. I will then apply an uplift to that starting point to take account of the other charges you are to be sentenced on today. Finally, I will consider your personal circumstances as they relate to your offending, in order to decide whether that starting point should be adjusted upwards or downwards.
Starting point
[18] I turn to the question of the appropriate starting point for your manslaughter offending. Ms McClintock, for the Crown, submits that a starting point of between four and a half to five years’ imprisonment is appropriate for the manslaughter offending. Mr Mansfield KC on your behalf, submits that a starting point of between three and a half to four years’ imprisonment is appropriate.
[19] I consider that the aggravating features of your offending are that you and Mr Mokoha were working together to assemble the pistol which you knew was loaded, while under the influence of methamphetamine, and when neither of you had a firearms licence nor any lawful basis for possessing the firearm. It is clear that while Mr Mokoha’s death was a tragic accident, it was also the result of gross negligence on your part, stupidity.
[20] I have read the cases referred to me by counsel.7 It is unnecessary to traverse each of them in detail here. It is a common factor in most of the manslaughter cases involving accidental discharge of a firearm that the firearm had been illegally obtained and the offender had no lawful purpose for having possession of it. It is also frequently the case that the firearm was being handled in a way that demonstrated that the offender did not possess or adhere to even a rudimentary understanding of firearm safety, and the individuals involved were often under the influence of alcohol or drugs. All of those factors are present here in your case.
[21] One aspect of your offending which I consider increases the level of your negligence, and therefore your culpability, is the fact that having loaded it yourself,
7 R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010; R v Fepuleai [2013] NZHC 2204; R v Sanft [2017] NZHC 2164; R v Sutcliffe [2017] NZHC 2882; R v Adlam-Kiro [2020] NZHC 2679; and R v Carden-Soole [2021] NZHC 65.
you knew the firearm was loaded with live ammunition. That is a significant distinction from many of the cases referred to me by counsel where either the defendant did not know the firearm was loaded and failed to check, or mistakenly believed that the firearm in their possession was not loaded.8
[22] However, I accept Mr Mansfield’s submission that unlike some of the other manslaughter cases you did not intentionally aim or point the firearm at the victim, and nor did you intentionally pull the trigger and discharge the firearm. That is an important distinction. In your case the firearm was accidentally discharged as you attempted to pull at a cord wrapped around it with your teeth. That is quite different from the cases where the defendant deliberately aimed the firearm at the victim and intentionally pulled or squeezed the trigger.9
[23] The case which is most similar to your offending in this respect is R v Adlam-Kiro.10 There the victim was the defendant’s cousin and friend. The pair were sitting together in a car outside the victim’s house. They were examining a modified firearm together — twisting it around and looking at it. At one point, when the defendant was handling the firearm, the barrel was pointed towards the victim. The gun discharged, shooting the victim in the stomach. He died shortly afterwards. In that case a starting point of four years’ imprisonment was adopted.
[24] Your offending is similar to that case in several respects. You too were friends with your victim. There was obviously no animosity between you and the victim. You did not deliberately point the firearm at the victim and neither did you intentionally squeeze the trigger. However I consider your offending to be marginally more serious than the offending in Adlam-Kiro. In your case you knew the firearm was loaded, and therefore you knew that there was risk of it being discharged and endangering someone. The defendant in the Adlam-Kiro case told Police that he did not know that
8 The defendants did not know the firearm was loaded in Sanft, above n 7, at [3]–[6]; Carden-Soole, above n 7, at [6] and [8]; Sutcliffe, above n 7, at [6]–[7]; and Adlam-Kiro, above n 7, at [28]. It is closer in this respect to the offending in Goldstone, above n 7, at [6]–[7] where the defendant knew the firearm was loaded. By contrast, the defendant in Fepuleai, above n 7, at [7] had reasonable grounds for believing the firearm was not loaded.
9 See, for example, Goldstone, above n 7; Sanft, above n 7; Fepuleai, above n 7; and Sutcliffe, above n 7.
10 Adlam-Kiro, above n 7.
the weapon was loaded. Moreover, you were also under the influence of methamphetamine at the time you were attempting to assemble the firearm, whereas no drugs or alcohol were involved in the Adlam-Kiro case. These factors in my view are relevant to my assessment of the level of your negligence and the negligence you displayed by your actions and therefore those are factors which also inform my assessment of your culpability for Mr Mokoha being shot and killed.
[25] Having regard to all the circumstances of your offending and to the comparable manslaughter cases I have considered, I consider that a starting point of four years and three months’ imprisonment is appropriate for your manslaughter offending.
Uplift for remaining charges
[26] I next turn to consider the appropriate uplift of that starting point to take account of the charges of conversion of a motor vehicle and unlawful possession of a pistol.
[27] The charge of conversion of a motor vehicle carries a maximum penalty of seven years’ imprisonment. I consider your actions in taking Mr S’s car from him at around 2.00 am on 29 March 2021 was serious criminal offending. When he stopped his car at a service station in Henderson, without any invitation from him to you, you got into the passenger seat of his car and asked him for a ride to a nearby train station. Mr S agreed but went into the service station first to purchase a drink for himself. When he got back to his car you were still sitting in the front passenger seat and two male associates of yours were sitting in the back seat. Mr S had not given them permission to get into his car.
[28] Once the car was underway you asked Mr S to take you to Grey Lynn and he no doubt intimidated by the presence of the three of you, agreed. However once on the North Western motorway and heading towards the city, one of your associates asked Mr S to take the three of you to South Auckland. Mr S refused and pulled over and stopped at the side of the road, saying he needed to go somewhere else and that you and your two associates had to get out of his car.
[29] You then swore at him and told him to get out of his own car. At the time Mr S saw that you were holding what appeared to be a pistol. One of your associates then got out of the back of the car holding a steel pipe which he had taken from the back seat. He held the pipe in both hands and kicked the door of Mr S’s vehicle, while shouting at Mr S to get out of his car. Outnumbered and fearing for his safety, Mr S got out of his car.
[30] You then got into the driver’s seat and with your two associates in the back seat, you drove off leaving Mr S standing on the side of the road in the early hours of the morning. However, it is important to note that despite your demanding that Mr S get out of his car, at no point did you point the firearm he saw that you had in your possession at him or in his direction, so that is to be noted. Mr S was able to report what had happened to the Police pretty soon after he had been left on the side of the road and shortly afterwards you and your two associates were stopped by Police whilst driving in his car. The Police searched the car and an Olympic 6 starter pistol was located on the floor between the passenger door and the seat, thereby confirming what Mr S had said that he saw in your possession, what appeared to be a pistol.
[31] The circumstances of you taking Mr S’s car from him involved you and your associates imposing yourselves on him by entering his car without being invited in circumstances that were obviously intimidating to him and were intended to be intimidating to him and when he could hardly refuse at that hour of the morning confronted as he was by the three of you. You had a pistol in your possession, and although it was a starter pistol that would not fire bullets, it nevertheless had, and was intended to have, an intimidatory effect on Mr S. You forced him to drive you towards the city and when he refused the request to take you to South Auckland, you demanded that he get out of his car while your associate was violently kicking his car and holding a steel pipe up in a threatening fashion.
[32] Your offending was not as serious or culpable as the offending in Geros v New Zealand Police11 where the offender used actual violence both with his fists and with a knife in his possession and where he explicitly threatened to stab the victim. In that
11 Geros v New Zealand Police [2017] NZHC 1544.
case a starting point of two years and six months was adopted and uplifted by six months for aggravating aspects of the offending and previous convictions. The sentence was upheld on appeal.
[33] Having regard to the serious nature of your offending, the intimidation and overbearing of Mr S by three offenders in respect of whom you were clearly playing a leading role, and your use of that numerical strength and a starting pistol to frighten Mr S to get him to get out of his car so that you could drive off in it, is offending that would in my view attract a starting point of between two and two and a half years’ imprisonment if you were being sentenced for that offending on a stand-alone basis.
[34] Both counsel agree that your offending, where you and two other individuals armed with weapons unlawfully took Mr S’s vehicle, was broadly comparable with the offending in Geros12 and I agree. Having regard to totality considerations I consider that an uplift of 18 months’ imprisonment is appropriate to take account of those additional charges.
[35] This brings the overall starting point for your offending to five years and nine months’ imprisonment.
Personal aggravating and mitigating factors
[36] I turn now to deal with your personal aggravating and mitigating factors and I do that as they may relate to your offending in order to assess whether the starting point I have adopted should be further adjusted upwards or downwards in deciding the final sentence to be imposed.
[37] In terms of personal aggravating factors, while you have no previous criminal convictions in New Zealand, you do have one criminal conviction in Australia from 2017 for aggravated robbery in company whilst armed with a firearm, for which you were sentenced to four years and six months’ imprisonment. It is also relevant that at the time of the present manslaughter offending you were on bail for previous firearms’
12 Geros v New Zealand Police, above n 11.
related offending, namely unlawful possession of a pistol relating to your offending against Mr S.
[38] Together these factors demonstrate your willingness to use firearms in the course of criminal offending without any regard for the lawful restrictions placed on the use of firearms or the inherent danger firearms pose either by being used intentionally or even when mishandled. Your grossly negligent misuse of a firearm in this case caused Mr Mokoha’s death. I consider that an uplift of six months’ imprisonment is appropriate to reflect both of these factors.13 That takes the starting point as adjusted to six years and three months.
[39] As to mitigating factors, you are entitled to a discount for your guilty pleas which, at least in respect of the manslaughter and unlawful possession of a firearm charges, were entered at the first reasonable opportunity. I shall allow you a discount of 20 per cent to recognise and take account of your guilty pleas.
[40] I will also allow a discrete discount of five per cent on account of your remorse. It is quite clear that you had absolutely no intention of harming Mr Mokoha. He was of course your friend. You were shocked and stunned by what happened, and you immediately contacted the emergency services and did what you could to save him. You made no attempt to hide anything from Police and you admitted what had happened. You have expressed deep, and I accept, sincere remorse for what happened and your offending and I accept that your remorse is genuine.
[41] It is also appropriate for me to consider your personal circumstances to the extent they inform your culpability for the present offending. You were born in the Cook Islands, but emigrated to Auckland as a child. Your parents separated when you were around eight years old. Your father had been a heavy drinker and was violent towards your mother. You recount one incident when you were about seven or eight years old when your father poured petrol on himself and on your mother and chased her around the house, attempting to burn her. You and your younger brother observed
13 It is well-established that overseas convictions may be taken into account in sentencing. See R v Patterson [2008] NZCA 75; Patterson v R [2008] NZSC 70; and Fry v R [2014] NZCA 174.
all this. Your father was taken away by Police and you say that you never saw him again.
[42] Your mother struggled to cope following the abuse she had suffered at the hands of your father, and for several years afterwards you were put in the care of other family members. You say you felt abandoned and no doubt that is an accurate description. This lack of belonging has persisted throughout your life. You left school early. You started using substances, or abusing substances, early in life, beginning at around eight or nine years old when you would sniff petrol for some form of relief or reaction. You started using cannabis shortly afterwards, and then methamphetamine. Your addiction kept you in bad company and those associations no doubt led to your criminal offending in Australia, for which you and your brother were both deported to New Zealand pursuant to s 501 of Australia’s Migration Act 1958.
[43] I consider there to be a clear causal nexus between your highly dysfunctional and at times violent upbringing and your subsequent addiction to substances including methamphetamine and the negative peer associations which led to your present offending. A further discount of 15 per cent is appropriate to reflect the extent to which those factors inform an assessment of your culpability for the present offending.
[44] These discounts being 20 per cent for your guilty pleas; five per cent on account of your remorse; 15 per cent for your personal factors and background contributing to a total discount of 40 per cent.
[45] So from an adjusted starting point of five years and nine months, and applying the uplifts I have mentioned and the discounts produces an end sentence of three years and nine months’ imprisonment.
Sentence
[46]Mr Rata would you please stand.
[47] On the charge of manslaughter, I sentence you to three years and nine months’ imprisonment.
[48] On the charges of conversion of a motor vehicle and unlawful possession of a pistol I sentence you to 18 months’ imprisonment on each of those charges to be served concurrently with the sentence I have imposed on you for the charge of manslaughter.
[49] On the charge of unlawful possession of a firearm, I sentence you to 12 months’ imprisonment which is also to be served concurrently with the sentence I have imposed on the charge of manslaughter.
[50] So the total sentence that I have imposed is one of three years and nine months’ imprisonment as the sentences imposed for the other charges are both to be served concurrently, meaning that they will be served at the same time as the sentence I have imposed in respect of the charge of manslaughter.
[51]I also make orders for destruction of the firearms seized by the police.
[52] Mr Rata, when working on that firearm to try and reassemble it you did not have any real control over what was happening, both by reason of your methamphetamine intoxication and the lack of information and knowledge you had. Similarly, you did not have much control over the circumstances which were adverse to you in your background and your childhood. But what happens next in your life is something that is within your control. If you choose to, you can still make good the expressions that you have conveyed to the report writers of your intention to live a positive life. I urge you to take advantage of the rehabilitative programmes that will be available to you while you are in prison and upon release. You obviously need to address your addiction issues. You obviously need to sever your ties and association with those people, whether they be gang members or people involved in the drug world who will inevitably drag you further into criminal offending, unless you take strong and committed steps to prevent that happening. You have a young son who obviously needs his father. You also have a younger brother who clearly needs your support too. You owe it to them but you more than anything else owe it to Mr Mokoha and his family to make positive changes in your life given the compassion that has been shown to you and the forgiveness that has been expressed by them to you. The rest is up to you.
[53]You may stand down.
Paul Davison J
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