R v Renata
[2022] NZHC 2745
•13 October 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-087-000434
[2022] NZHC 2745
THE QUEEN v
KAYLEB RENATA ROGER TUTAKANGAHAU
Hearing: 13 October 2022 Appearances:
D J McWilliam for Crown
R O Gowing for Kayleb Renata
W T Nabney for Roger TutakangahauSentence:
13 October 2022
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Tauranga Gowing & Co., Whakatane
R v KAYLEB RENATA & ANOR [2022] NZHC 2745 [13 October 2022]
Introduction
[1] Kayleb Renata, at 18 years old, you appear before the Court today for sentence having been found guilty of the murder of Jamaine Wharton.1
[2] Roger Tutakangahau, at 28 years old, you appear today for sentence having been found guilty on one charge of manslaughter,2 also relating to the death of Jamaine Wharton.
[3] There are a large number of Jamaine Wharton’s immediate and extended family present in Court today, including those who have courageously presented their victim impact statements in which they expressed their heartfelt grief at the loss of a much-loved family member, and I commence my sentencing remarks today by extending the Court’s sincere sympathy to Jamaine’s family for their sad loss. There are of course no words to relieve the pain of your loss, however the sentencing and the imprisonment of those found to be responsible for Jamaine’s death will to an extent at least enable you to put this phase of the process behind you which has been a gruelling one for all of you who have been present here during the trial and have listened to evidence which has no doubt been distressing to you. So this process today puts an end to that and will enable you to move forward to deal with this in your own private way that you will need to cope with the loss of Jamaine for the remainder of your lives.
[4] Mr Renata, the sentence I shall impose upon you today will be one of life imprisonment. That is the sentence that must be imposed for murder, unless it would be manifestly unjust to impose that sentence upon you.3 Crown counsel and your own counsel agree that a sentence of life imprisonment would not be unjust in your case and that is the sentence I shall impose on you. The principal issue I must decide is the number of years that you must serve your life sentence for before you will become eligible for parole. This is called the minimum period of imprisonment or “MPI”. Your counsel Mr Gowing, and Crown counsel both agree that an MPI of 10 years is appropriate in your case.
1 Crimes Act 1961, ss 167 and 172: carrying a maximum penalty of life imprisonment.
2 Sections 171 and 177: carrying a maximum penalty of life imprisonment.
3 Sentencing Act 2002, s 102.
[5] Mr Tutakangahau, Mr Nabney on your behalf submits that a starting point of five years’ imprisonment is appropriate in terms of the sentence to be imposed upon you and he submits that that should be reduced by allowing certain discounts. The Crown submits that in your case a starting point of five and a half to six years’ imprisonment is appropriate.
Background
[6] I will commence by briefly setting out the factual basis on which I shall sentence you both. I am required to accept as proven, all facts that are essential to your guilt.4 I may also reach my own view based on the evidence, of those facts relevant to the sentencing so long as they are consistent with the jury’s verdict.5
[7] On the evening of 27 February 2021, Mr Tutakangahau, Mr Renata, and a third individual Billy-Dean Raina, who I will refer to collectively as “the defendants”, were all present at a birthday party held at the Waiohau Rugby Club. The party was being held for Mr Tutakangahau’s younger sister who was turning 21 years old. There were around 30 or more people in attendance over the course of the afternoon and evening.
[8] Mr Tutakangahau, Mr Renata and Billy-Dean are known to one other through close family relationships. All three have strong connections with the Mongrel Mob gang through immediate family and each has demonstrated their strong allegiance to the Notorious chapter of the Mongrel Mob. On the evening of 27 February 2021, all three were wearing items of red clothing indicating their affiliation to and support of the Mongrel Mob gang. Mr Tutakangahau in particular was wearing a red Mongrel Mob hoodie style sweatshirt.
[9] During the course of the evening, Mr Tutakangahau, Mr Renata and Billy-Dean were seen by other partygoers to be harassing and picking on people who were present, trying to pick fights and generally acting in an intimidatory manner towards others who were there as guests. At various stages of the night they were making dog barking noises, including barking through some of the songs when using the karaoke machine.
4 Sentencing Act, s 24(1)(b).
5 Edwardson v R [2017] NZCA 618 at [105]–[107].
Making barking sounds is a way Mongrel Mob gang members behave to rouse one another, and to demonstrate their camaraderie and show their loyalty to the gang. The barking is obviously intended to intimidate onlookers.
[10] As the evening progressed, Mr Tutakangahau confronted the victim, Jamaine Wharton in relation to Jamaine wearing a black hat, and he used offensive language to abuse him as being a member of the Black Power gang. However Jamaine had no connection to the Black Power gang, and was not related to or connected to any of the defendants and had no gang affiliations whatsoever.
[11] Jamaine responded to this abuse by asking Mr Tutakangahau to show respect to the whenua, but despite that Mr Tutakangahau continued to harass Jamaine and accused him of bad mouthing him, staring at him and disrespecting him. Mr Tutakangahau then asked Jamaine to go outside for a “one out” fight, which Jamaine declined or refused to do.
[12] Tensions at the party appear to have settled for a short period, but later that night Mr Tutakangahau, Mr Renata and Billy-Dean once again gathered around the table where Jamaine was sitting and confronted him again, repeating the same accusations and challenging him to a “one out” fight.
[13] One of the party guests seeing those tensions and seeing that they were escalating offered to take Jamaine home, but Mr Tutakangahau’s mother intervened and yelled at Jamaine suggesting that he was somehow responsible for the confrontation which had developed. Jamaine denied doing anything, however, Mr Tutakangahau’s mother continued to yell expletives demanding that Jamaine go outside for a “one out” fight with her son.
[14] Then while Jamaine remained seated at the table, you Mr Tutakangahau jumped over the table and punched him hard, several times in the face. These heavy blows caused Jamaine’s head to swing back and strike the wall behind him. Jamaine tried to defend himself but others joined the attack, including Mr Renata who also punched Jamaine in the face.
[15] Several partygoers attempted to intervene to stop the fight, and Jamaine managed to get away and run towards the kitchen. The defendants and other gang associates began barking and chasing after him. Billy-Dean intercepted Jamaine as he tried to reach the kitchen, and punched him hard with his fist to the side of his face, knocking him to the floor. Billy-Dean then kicked Jamaine.
[16] Despite this further assault, Jamaine managed get up and reach the kitchen. Mr Tutakangahau and Mr Renata chased after him, with one of them climbing through the kitchen servery to get into the kitchen to get at Jamaine. Once in the kitchen Mr Renata and Mr Tutakangahau continued to punch Jamaine in the face, knocking him to the ground, and they then proceeded to stomp on him a number of times.
[17] Once again other partygoers tried to intervene and separate the group but they were unsuccessful, some of them being punched and kicked by the defendants as they tried to do that.
[18] Jamaine however managed to get up and run outside. Once outside he ran along the gravel road leading up to the urupa or cemetery. Seeing Jamaine fleeing, Mr Tutakangahau shouted to Mr Renata “Get him”. Jamaine was then chased up the road by the three defendants. Mr Renata was ahead of the other two and closest to Jamaine during the pursuit, shouting at him “I’m going to get you cunt.” Mr Tutakangahau shouted to Mr Renata, “Get him dog, get him.”
[19] Mr Renata soon caught up to Jamaine on the gravel road and grabbed hold of him. He punched him again before using a knife he had taken in his pocket to the party and using the knife he stabbed Jamaine twice in the chest and when he fell to the ground, stabbed him again, this time in the side of his abdomen. These three stab wounds caused Jamaine to suffer rapid blood loss.
[20] Although seriously injured and bleeding, Jamaine managed to get up off the ground and he started to run back along the gravel road towards the Rugby Club and Marae. As he ran he was struck by Billy-Dean who put his arm out to strike him as he passed him, causing Jamaine to be knocked backwards and fall onto the ground.
[21] Billy-Dean then kicked Jamaine and bent down over him and punched him multiple times about the face. Despite that attack Jamaine managed to roll over, get back up and resume his efforts to head back towards the Clubhouse and the Marae.
[22] However he was soon met along the road by Mr Tutakangahau, who pulled him to the ground and punched and kicked him several times about the head. Jamaine then fell onto his back. By then a female party guest who had gone to try and help Jamaine arrived and she attempted to intervene to stop the attack, but Mr Tutakangahau knocked Jamaine back onto the ground and started punching him as he lay on his back. While he was standing by Jamaine’s chest, Mr Tutakangahau struck Jamaine a number of further times and while doing this he whispered something to him. Jamaine moaned in pain as he was being struck and blood was seen to be pouring from his chest as Mr Tutakangahau then backed away, saying “That’s what you get.” Jamaine cried out saying “Someone please help me, I’m going to die”. Some of the other party guests then came to Jamaine’s assistance, and he was then carried back to the Rugby Clubhouse and taken away shortly afterwards in a private vehicle to the Whakatāne Hospital. Sadly, he died on the way.
[23] A post mortem examination of Jamaine showed that he had received three penetrating stab wounds during this ongoing assault: one stab wound to the left side of his body in the central rib area; one to the right side of his body in the upper rib area penetrating his lung; and one stab wound to the right side of his body in the lower torso, penetrating his liver and causing significant bleeding into the right side of his chest. The deepest of these stab wounds was some nine centimetres in depth.
Victim impact statements
[24] In preparing for today’s hearing I have read all of the victim impact statements and along with everyone present in the Courtroom here today I have heard them being read by various family members. It takes considerable courage to stand here in Court and read those statements and to endeavour to convey the deep sense of sadness and loss that they are feeling as a result of Jamaine’s death, a sense of loss that can never be fully expressed in words.
[25] They each speak of their profound grief at the loss of Jamaine, and of the anger they feel towards you Mr Renata and you Mr Tutakangahau. In their statements they have spoken of Jamaine’s good nature and sense of humour, his happiness and the joy that he brought to so many of those with whom he had anything to do with and certainly the joy that he would have brought to the life of his young son who has clearly been devastated by the loss of his father. Your mindless and violent actions deprived him and his family of all of that and what would have been and should have been a long and happy life spent amongst his family and his community. The sentences that I shall impose on you both are for the purpose of holding you accountable for what you have done, but no sentence imposed on you can change the fact that you have taken the life of a much loved partner, son, father and member of a profoundly grieving family who will forever mourn his loss. And all because in your world ganging up together to violently attack an effectively defenceless man is regarded as a sign of being tough — when in fact it shows you to be the cowards that you truly are.
[26] I shall commence by sentencing you Mr Renata before turning to sentence Mr Tutakangahau.
Sentencing framework
[27] I record at the outset the requirement that I must consider and apply the principles and purposes of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. This includes as I have just said the need to hold you accountable for the harm done to Jamaine and his whānau, 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 murder or manslaughter. I must impose the least restrictive outcome that is appropriate in the circumstances of this case.
[28] Mr Renata, I will first determine whether it would be manifestly unjust to sentence you to life imprisonment under s 102 of the Sentencing Act. If it would be manifestly unjust, I would instead of life imprisonment, impose a finite sentence of
imprisonment. However, if it would not be manifestly unjust to do so, I will impose a sentence of life imprisonment and proceed to fix a minimum period of imprisonment. This involves taking into account the circumstances of your offending, including any aggravating or mitigating factors, and your personal circumstances as they relate to that offending. The resulting sentence would therefore be one of life imprisonment with a minimum period of imprisonment imposed.
Life imprisonment
[29] I turn then to the first issue: would it be manifestly unjust to sentence you to life imprisonment Mr Renata? There is a statutory presumption under s 102 of the Sentencing Act that offenders convicted of murder will be sentenced to life imprisonment unless it would be manifestly unjust to do so.6 This is a high threshold likely to be met only in “exceptional cases”.7 The injustice must be clear.8 The examples often given are cases involving a mercy killing or where there is evidence of prolonged and severe abuse of the offender.9 The test for manifest injustice involves an overall assessment of both the circumstances of the offence and of the offender. I will assess each of these in turn.
The circumstances of the offence
[30] The aggravating features of your offending, Mr Renata, are broadly similar to the aggravating features of Mr Tutakangahau’s offending, albeit with some differences. I consider the following aggravating features were present in your offending.
[31] First, the significant level of violence associated with your attack.10 You took part in what was a sustained and savage beating of Jamaine in which he was first punched, kicked and stomped on. This culminated with you using a knife to stab him twice in the chest, causing him to fall to the ground and you then bent over and stabbed him a third time in the torso, causing rapid blood loss which resulted in his death.
6 Sentencing Act, s 102(1).
7 R v Rapira [2003] 3 NZLR 794 (CA) at [121].
8 At [121].
9 At [121].
10 R v Taueki [2005] 3 NZLR 372 (CA) at [31(a)]; and Sentencing Act, s 9(1)(a).
[32] Secondly, the use of a weapon.11 You used a knife to stab Jamaine three times to the chest and torso. As I have said, one of those stab wounds penetrated his lung, another penetrated his liver. They were obviously forceful blows. One of the wounds was nine centimetres deep.
[33] Thirdly, the extent of loss or harm resulting from the offence, namely the loss of Jamaine’s life.12 As I have said, it is evident from the victim impact statements just how deeply your offending has affected everyone who knew Jamaine and who were part of his life.
[34] Fourthly, your offending involved a number of attacks to the head.13 Fifthly, the violent attack involved multiple attackers, each of whom violently assaulted Jamaine in turn as he attempted to flee from you.14 Sixthly, there is an element of victim vulnerability which needs to be recognised.15 Jamaine became increasingly vulnerable as the attack progressed. Other than fleeing away from you he had no hope of defending himself against the combined force of the three of you. He did not attempt to fight back — he only tried to defend himself and get away from you. By the time you inflicted the fatal stab wounds, he had already been severely beaten and was trying to escape. You chased after him and stabbed him twice to the chest, and then one further time as he lay helpless on the ground. He was, at that stage, utterly defenceless and entirely vulnerable. There are no mitigating features of your offending whatsoever.
[35] There is of course a degree of overlap between some of these factors and I am conscious of that overlap in assessing the circumstances and the gravity of your offending.
The circumstances of the offender
[36] With respect to your personal circumstances, there are no aggravating factors to discuss. But there are significant mitigating factors, the most important of which is
11 Section 9(1)(a).
12 Section 9(1)(d).
13 At [31(e)].
14 At [31(h)].
15 At [31(i)]. See Everett v R [2019] NZCA 68 at [37].
your youth. Although you are now 18 years old, you were only 16 years old at the time of the attack and murder. That is a highly relevant factor in assessing your culpability for the offending.
[37] I have also had the benefit of reading a pre-sentence report and a cultural report which describe the circumstances of your upbringing. Those circumstances warrant some elaboration to the extent that they inform an assessment of your culpability.
[38] Your upbringing was a turbulent one. You are the second youngest child in your family. You have eight other siblings to your father, four brothers and four sisters. You do not share the same mother as many of your siblings. Your mother was not a regular presence in your life. She was addicted to methamphetamine and would come and go in and out of your life. Your father was more involved in your life, but he was also involved with gangs. He is a long-standing member of the Mongrel Mob and has an extensive criminal history. You were frequently exposed to criminal offending while in his care.
[39] You were uplifted by Oranga Tamariki as a child and sent to live elsewhere. You were then moved again, this time to live with your paternal grandparents. You were moved out of your grandparents’ home at age 13 following a serious assault on your brother with a weapon. You were moved again and continued to criminally offend. This pattern continued until the time of your present offending. I also note that during your time in custody following this offending your behaviour has continued to be aggressive and disruptive to those who have responsibility for your custody.
[40] You have been exposed to alcohol and substance abuse since your infancy. You used cannabis at age 12 and methamphetamine at age 14. You were under the influence of significant quantities of alcohol at the time of this offending, as well cannabis and Ecstasy MDMA.
[41] The authors of your cultural report suggest that your behaviour is indicative of having little remorse for the offending. You say “I love the life I live. Love being mischief, being bad. I thrive off it.” You are said to display many of the clinical
indicators for a diagnosis of conduct disorder, symptoms of which include aggressive and destructive behaviour, violence, violation of social rules and a high level of disregard for others, which includes a lack of remorse and difficulty feeling empathy for others. Such factors tend to suggest a diagnosis of an antisocial personality disorder as an adult. The authors describe this as a “predictable trajectory” in your case.
[42] You are wholly ill-equipped to deal with life as an adult outside of prison. You cannot sensibly contemplate your future at this stage it appears. Due to your age you have limited work experience and you do not anticipate getting a job with your criminal record. You described working at an orchard as being for “shit money” and that you would rather stand over people than work like that. It is clear that you will need a significant amount of rehabilitative effort and support before you will be able to safely reintegrate into the community without remaining a significant risk to the public.
Would a sentence of life imprisonment be manifestly unjust?
[43] I turn now to balance and consider the various considerations. The question is whether, having regard to the circumstances of the offence and your personal circumstances, a sentence of life imprisonment would be manifestly unjust.
[44] Both the Crown and your counsel agree that a sentence of life imprisonment would not be manifestly unjust. Mr Gowing, on your behalf, accepts that your case does not fall within the narrow band of cases or categories in which the presumption of life imprisonment has previously been displaced, for example, where there has been a mercy killing or where there is evidence of prolonged and severe abuse of the offender.16
[45] I consider that a sentence of life imprisonment would not be manifestly unjust. Simply put, your offending involved a senseless and savage beating of an innocent man who had done nothing whatsoever to provoke you, who posed no threat whatsoever to you, and who was outnumbered by you and your associates three to one.
16 R v Rapira, above n 7, at [121]. See also R v Nelson [2012] NZHC 3570.
It culminated with you stabbing him three times to the chest, inflicting the final blow while he lay vulnerable and utterly defenceless on the ground. Your personal circumstances, including your youth, do not render a sentence of life imprisonment manifestly unjust. Such a sentence is appropriate to meet the principles and purposes of sentencing.
[46]I will therefore sentence you to life imprisonment.
Minimum period of imprisonment
[47] It remains to fix an appropriate minimum period of imprisonment.17 By law the minimum term may not be less than 10 years.18 Again, both the Crown and your counsel are in agreement as to the appropriate outcome. They both submit that a 10 year MPI is warranted and appropriate in your case. I agree. The circumstances of your offending together with your personal circumstances, and in particular your youth, are such that an MPI of 10 years is sufficient to meet the principles and purposes of sentencing.
[48] The sentence I shall impose on you shortly will therefore be one of life imprisonment with a minimum period of imprisonment of 10 years before you will be eligible to apply for parole.
Roger Tutakangahau’s sentence
[49] Mr Tutakangahau, you were acquitted by the jury on the charge of murder but found guilty of manslaughter. I will adopt the sentencing approach affirmed by the Court of Appeal in Everett v R that involves fixing a starting point for your offending by reference to the aggravating and mitigating factors identified in R v Taueki and assessing your culpability by reference to comparable cases involving manslaughter.19 I will then consider your personal circumstances as they relate to your offending, in order to assess whether that starting point should be adjusted upwards or downwards.
17 Sentencing Act, s 103(1)(a)(i).
18 Section 103(2).
19 Everett v R, above n 15 at [27]. See also R v Taueki, above n 10.
Starting point
[50] The Crown submits that the appropriate starting point for your offending is in the region of five and a half to six years’ imprisonment. On your behalf, Mr Nabney submits that a starting point of five years is appropriate.
[51]I consider the following aggravating features are present in your offending.
[52] First, the significant level of violence associated with your attack.20 You were the instigator of the violent attack upon Jamaine. You chose to pick a fight with him, when it was clear to you that he had no interest in becoming involved in fighting with you. You nevertheless persisted and what followed was a vicious and sustained attack on him in which you actively encouraged the participation of others. He was attacked in several locations in and around the clubhouse. He was punched, kicked and stomped on. He repeatedly tried to get away and escape, but you were never going to let him get away and you chased him and encouraged others to do the same. The violence Jamaine was subjected to was “gratuitous”, “prolonged” and entirely “unprovoked”.21 That is a significantly aggravating feature of your offending.
[53] Secondly, I must take into account the seriousness of the injury caused by your offending.22 Jamaine suffered a very large number of injuries (particularly contusions and abrasions) to his head, chest, back, shoulders, arms and legs. He was ultimately killed by three stab wounds in the course of Mr Renata’s attack. Although you did not personally inflict the fatal wounds, and the stabbing is not an aggravating feature of your offending,23 I consider that you were the prime instigator and motivator behind this offending and this attack: having instigated the conflict while in the clubhouse, you continued to escalate tensions before physically attacking Jamaine yourself, and then actively encouraging Mr Renata and Billy-Dean to attack him as well. The serious injuries Jamaine suffered aggravates the severity and gravity of your offending.24
20 R v Taueki, above n 10, at [31(a)]; and Sentencing Act, s 9(1)(a).
21 At [31(a)].
22 At [31(c)]; and Sentencing Act, s 9(1)(d).
23 See R v Burke [2021] NZHC 136 at [23]; and Burke v R [2022] NZCA 279 at [144]–[145].
24 I am conscious that Jamaine’s death is an element of the offence of manslaughter.
[54] Thirdly, your offending against Jamaine also involved a number of attacks to the head.25 Fourthly, there were multiple attackers.26 You outnumbered Jamaine three to one. Although the conflict began with you, and your mother challenging Jamaine to a “one out” fight, instead of a one-on-one fight, you proceeded to gang up on him and attack him as one of a group. He had no prospect of defending himself against so many of you, carrying out what was nothing less than a cowardly pack assault on a single victim.
[55] Finally, I consider that Jamaine became increasingly vulnerable over the course of your prolonged attack.27 He was repeatedly knocked to the ground and severely beaten, in ways I have already mentioned, sustaining injuries across effectively his whole body and was in no position to defend himself or fight back. You, Mr Tutakangahau, were the one who delivered what were the final blows to his body notwithstanding that they were not the fatal blows. This happened when Jamaine was lying on the gravel road having already been stabbed three times by Mr Renata and at a time when, as observed by a witness, he had blood pouring from his chest as he lay on the road. His shirt was off and even in the poor lighting conditions where this was happening I consider that it would have been clear to you just how seriously injured and how vulnerable Jamaine was at that stage, when you proceeded to continue to punch him while whispering something in his ear, and saying: “That’s what you get.” Jamaine’s vulnerability, particularly as the attack progressed, is in my view an aggravating, and significantly aggravating, feature of your offending.
[56] There is of course a degree of overlap between some of those factors and again I am conscious of the need to ensure, when assessing the gravity of your offending, that I do not double count those factors in that assessment. I also note that there is no evidence that you knew about the knife Mr Renata had in his possession and I therefore do not treat his use of the knife as a weapon and the violence inherent to such a stabbing as aggravating features of your offending.28
25 At [31(e)].
26 At [31(h)].
27 At [31(i)]. See Everett, above n 15, at [37].
28 See Burke v R, above n 23, at [144]–[145].
[57] There are however two further factors which warrant consideration. They are the gang overtones to this offending and the element of premeditation. Neither is aggravating to the same extent as the factors I have already mentioned, but both inform an assessment of the gravity of your offending and your culpability.
[58] It is clear that you, Mr Renata and Billy-Dean were all affiliated with the Mongrel Mob, Mr Tutakangahau. You were all wearing red clothing on the night of the offending and you, Mr Tutakangahau, were wearing a Mongrel Mob hoodie to clearly show your affiliation and allegiance to the Mongrel Mob gang. The three of you were barking like dogs throughout the night, including as you chased Jamaine during the attack, being a signal as I have said, used by members of the Mongrel Mob to rouse one other and intimidate others. It was you who shouted “Get him dog, get him” to Mr Renata as he commenced his chase after Jamaine and shortly before he caught up with him and stabbed him three times in the chest. Alongside your family ties with Mr Renata and Billy-Dean, I consider that you, Mr Tutakangahau, shared affiliation to and loyalty to the Mongrel Mob and that that was a significant factor contributing to their willingness to join with you in your attack and to follow your directions — by pursuing Jamaine and, ultimately in Mr Renata’s case, stabbing him as he did shortly after you called to him “Get him dog”. This informs an assessment of your culpability by showing you to be the “leader” of the group, and someone in a position of authority and with the ability to influence what the other members of your group were doing and to direct them as to what role they played and what then took place.
[59] There is also a degree of premeditation to your offending, albeit to a relatively limited extent. I agree with the Crown that there is a distinction between premeditation in the sense of planning and premeditation in the sense that there is forethought before acts are carried out. It is clear that on that night you were looking for a fight. Jamaine offered you no provocation or cause to attack him. But you proceeded to insult him and challenge him to a fight. He declined. Although matters, as I have said, initially appeared to have been settled, you were not prepared to let the matter drop and leave Jamaine alone. You returned to where he was seated at the table sometime later and once again challenged him to a fight, before leaping over the table to attack and punch him.
[60] I consider that it was plainly your intention throughout the night from an early stage, demonstrated by your interactions with Jamaine, to engage someone in a physical fight and in his case it was unfortunate that you chose him. To that extent, I do not think your offending can be characterised as entirely impulsive or as something done in the heat of the moment. As I have said, you specifically and persistently looked for an opportunity to use violence and engage in a fight over the course of that evening and then once outside, when there were opportunities for you to desist, you continued to pursue him and that was over a period of minutes and even after he had been attacked by Mr Renata, you continued to involve yourself in the assault. There were many, many, many opportunities for you to decide to break off the attack and throughout that entire period you were premeditating the continuing of that attack.
[61] So, in my view, there is a relevant and significant element of premeditation arising from the way in which you conducted yourself and continued the attack in those circumstances. It was not pre-planned perhaps in the way that some criminal offending is, but it was certainly premeditated and that is a matter which aggravated your offending.
[62]There are no mitigating features of your offending.
[63] Where offending is marked by two or three aggravating factors, placement within band two of Taueki is appropriate and will attract a starting point of between five and 10 years’ imprisonment.29 Where three or more aggravating features are present, and the combination of features is particularly grave, the offending falls within band three of the Taueki case with a starting point of between nine and 14 years.30 I consider that your offending falls above the five year threshold and towards the middle of band two. The combination in particular of the prolonged and gratuitous violence, the serious and ultimately fatal injuries sustained by Jamaine, and the fact that it involved three determined attackers bearing down persistently on a single, increasingly vulnerable victim, warrants a starting point of somewhere between six and seven years’ imprisonment.
29 R v Taueki, above n 10, at [34] and [38].
30 At [34] and [40].
[64] I will now assess your culpability by reference to comparable cases involving manslaughter. The Crown have referred me to three decisions, none of which involve offending closely comparable with yours. In R v Smith, the victim died as an unintended consequence of being placed in a headlock during the course of a kidnapping.31 A starting point of seven years’ imprisonment was adopted for the defendant, who was convicted of both manslaughter and kidnapping, and who assisted in restraining the victim (albeit he was not the person applying pressure to the victim’s neck which caused his death). As I said there is little about the factual matrix of that case to make it closely comparable to your offending. There was of course no kidnapping in your case, and your role in the offending was as the instigator of the attack on Jamaine as a leader rather than a follower, and you employed considerably more violence, both in terms of duration and severity, than the defendant in Smith. I consider your culpability for Jamaine’s death to be greater than that of Smith although it is appropriate to note that the starting point of seven years adopted in that case related to both the manslaughter and the kidnapping offending.
[65] The Crown also refers to R v Pene in which the 18 year old defendant pleaded guilty to a charge of manslaughter after he stabbed the unarmed victim at a party with a knife.32 A starting point of seven years was adopted. That was not a case of party liability so any comparison with your offending Mr Tutakangahau is therefore limited and qualified. There are however some similarities, for example the unarmed victim died as a result of being stabbed, but again I consider there to be material differences with the circumstances of your case. Your offending involved a far more prolonged course of violence, resulting in a large number of injuries before the fatal stab wounds were inflicted, during an attack by multiple attackers on a vulnerable victim, with the others essentially following your directions.
[66] More similar is the offending in R v Burke in which the defendant was convicted of manslaughter for his participation in the killing of a fellow gang associate.33 The victim sustained multiple stab wounds to his chest and arms and died shortly afterwards. The defendant did not inflict the stab wounds, but admitted to
31 R v Smith [2019] NZHC 2251.
32 R v Pene [2021] NZHC 3327.
33 R v Burke, above n 23.
punching the victim and placing him in a chokehold.34 A starting point of six years and six months was adopted. This again bears some similarity to your offending, for example because death occurred by stabbing and because Mr Burke’s liability for manslaughter arose as a party rather than as the principal offender. There were also clear gang overtones in that case.
[67] However, I consider that you played a more significant role in the death of Jamaine than the defendant did in Burke. Mr Burke was present at the time the victim was stabbed and made the victim’s escape and survival less likely, including by punching and choking the victim when he tried to escape.35 But you were the one responsible for instigating the attack on Jamaine, and taking a central role in encouraging the violence that unfolded, both personally (by repeatedly punching, kicking and stomping on Jamaine) and by inciting Mr Renata and Billy-Dean to do the same, including by encouraging Mr Renata to, “Get him dog, get him” which closely preceded the fatal stabbing. Therefore in my view, your culpability for Jamaine’s death is greater than, or at least as significant, as that of Burke.
[68] Mr Nabney, on your behalf, referred me to the decision of R v Innes in which a starting point of four and a half years was adopted for a defendant sentenced as a party to manslaughter.36 However, I do not consider that case to be directly comparable to your offending. Mr Innes’s role in the offending involved driving the principal to the victim’s address for the purpose of luring the victim outside to obtain drugs. He knocked on the door of the property before running back to the driveway and waving his arms “in what appears to have been an attempt by [Mr Innes] to encourage [the victims] to follow”.37 That was the end of his involvement. After reaching the footpath, Mr Innes did not return to the property, he did not witness the violence that unfolded, resulting in one of the victims being stabbed, and he did not meet up again with the principal offender.38
34 At [11].
35 At [28].
36 R v Innes [2016] NZHC 1195.
37 At [7].
38 At [10].
[69] Justice Mander found that Mr Innes knew the principal was erratic, unreliable and armed with a knife.39 But he had no intention of bringing about the victim’s death “or to contribute to such a tragedy”.40 He “wanted no direct involvement in violence” and indeed was “not even present by that stage of the events”.41 His culpability was limited to his involvement in creating the dangerous situation, even if he viewed the risk of anyone being stabbed as “unlikely, if not remote”.42
[70] Your offending, by contrast, Mr Tutakangahau, was very different. For the reasons already outlined, unlike Mr Innes who had no involvement in the violence and indeed who was not even present at that stage of the events, I consider that you were centrally involved in the violence. You inflicted much of it yourself and encouraged others to do the same. Violence was not a remote albeit foreseeable consequence of your offending. In fact the violence was the purpose of your offending. Your purpose in attacking Jamaine was simply to cause him injury and harm. Your role in the offending and your culpability for Jamaine’s death, was in my view considerably more significant than that of the defendant in Innes.
[71] I have therefore considered a number of additional cases in assessing the appropriate starting point. Again, owing to the variety of circumstances in which liability for manslaughter can arise, and in particular the liability for manslaughter in the circumstances such as these, none of those other cases involve closely similar offending. They are nevertheless of some assistance in assessing your culpability. It is unnecessary for me to go through all of them and they will be footnoted in the written version of my reasons and sentencing decision that I will release.43
[72] However, there is the case of R v Madams, in which a number of family members were all sentenced in relation to the respective parts they played in a revenge
39 At [27].
40 At [19].
41 At [22]–[23].
42 At [23].
43 See, for example, R v Rapira, above n 7; R v Brider HC Wellington CRI-2004-241-116, 3 September 2009; R v A [2021] NZHC 502; R v Kuru [2021] NZHC 1932; R v Parker [2012] NZHC 2458; and R v Afamasaga [2014] NZHC 2142. The facts of many of these cases differ from the present case, for example, because they involve significant premeditation or the manslaughter occurred in the course of a home invasion or aggravated robbery.
killing of someone known to the family that I have found to be of assistance.44 I consider it a good illustration of the effect that a defendant’s role in the offending, not as the principal offender but as, for example, the instigator of the attack and someone with influence over the other offenders, can have on the appropriate starting point. Justice Mallon considered a number of cases involving a group attack where a person was killed and the Court had to assess the relative culpability of the party offenders.45 She found that:46
Those cases suggest a range of up to eight years for non-physical participants and those whose physical involvement in the attack are minor, lower starting points are available for those whose physical involvement in the attack are minor and can be considerably lower for those with peripheral roles.
[73] One of the defendants in Madams, identified as “L”, was sentenced on his conviction for manslaughter as a party. He was a young person whose role in the offending was described as “rather peripheral” and involved him taking a weapon onto the victim’s property alongside his co-defendants and striking the victim a single time. A starting point of seven years was seen to be appropriate.47 By contrast, another defendant, Tyrone Madams, was also sentenced on the basis of party liability for manslaughter, but his role in the offending was quite different. He initially did not go onto the victim’s property, but arrived there carrying a weapon once the altercation was already underway.48 He did not inflict a single blow. Justice Mallon considered that his role within the family and his “status and influence” over the others all supported him being the instigator of the decision to attend the victim’s property.49 His case is distinguishable from yours because he was carrying a weapon with him but nevertheless there is a comparison in terms of the status and influence over the others which was a factor identified by Mallon J.
[74] In that case she adopted a starting point of nine years’ imprisonment to reflect his “role as instigator” and the fact that his influence over the others was pivotal in how the events unfolded.50 As I have said, aspects of the offending in Madams were
44 R v Madams [2017] NZHC 81.
45 At [38].
46 At [38] (footnotes omitted), cited in R v Burke, above n 23, at [31].
47 At [40].
48 At [70].
49 At [70].
50 At [75].
more serious than in your case. There was a significant level of premeditation demonstrated and planning because the attack occurred on the victim’s own property,51 and you of course did not have a weapon in your possession but you did actually and repeatedly strike Jamaine, and I consider the “status and influence” factor that Mr Madams had over the other offenders to be a factor that is also present in your offending Mr Tutakangahau.
[75] You were also clearly the “leader” of the group and the instigator of the attack, as I have said. This influence you exerted over Mr Renata and Billy-Dean, by reason of you being older in age, your mutual family ties and affiliation with the Mongrel Mob, was a key element in the events that unfolded and informs your culpability for Jamaine’s death. The violence in this case was also far more prolonged than the violence in Madams and was inflicted by all three of you upon an increasingly vulnerable victim, who had initially been chased around the clubhouse when he tried to escape. One witness described that at one stage during the events outside the clubhouse and along the gravel road, it appeared that the three of you were playing a game of “piggy in the middle” with each of you taking turns to beat Jamaine whenever he tried to run away from you.
[76] Your comment to Jamaine, Mr Tutakangahau, of “That’s what you get” when you stood back after punching him for the last time, reveals your motive for initiating the attack to have been to administer gratuitous violence to him, an entirely innocent victim. There was, as I have said, never any reason for the violence that you inflicted upon him and certainly nothing that he had done or said that could have provoked a violent response from you or anyone else. But surrounded by and supported by your fellow gang members you took advantage of your numerical advantage and set out to engage in violence for no reason other than it was something that you and your associates decided that you wanted to do. It is clear from the evidence that at one point your mother appears to have inflamed the confrontation by insisting on you having a one-out fight with Jamaine but well after she had done that, you persisted and a one-out became a group attack, a quite different type of confrontation.
51 Another distinguishing factor of which I am mindful is that Tyrone Peter Madams knew there were weapons in the car and that they would be used in the assault.
[77] Although there is no evidence that you knew that Mr Renata had a knife or that you were ever expecting a knife to be used or that Jamaine would be stabbed and killed, this was nevertheless serious criminal offending and your leadership of the attacking group and your instigation of the attack from the outset in the Clubrooms and afterwards as Jamaine was being pursued is the behaviour of a cruel and overbearing bully, emboldened by being surrounded by your gang associates to outnumber the unfortunate Jamaine Wharton. This intimidation and mindless violence appears to be very much part of your life and how you behave.
[78] For these reasons I consider that a starting point of six and a half years’ imprisonment is appropriate to recognise the gravity of your offending. This is also consistent with my placement of your offending towards the middle of band two in Taueki.
Personal circumstances
[79] There are no aggravating factors to mention. I have read the pre-sentence report prepared by the Department of Corrections and the cultural report which has been prepared at the request of your counsel which also describes your personal and cultural background. I have also read the letter that has been written by your parents to the Court which has been provided to the Court this morning and a letter written by your grandmother Pani Monika.
[80] Your childhood and upbringing took place within a family environment characterised by family dysfunction, anti-social influences, violence and criminality. That is in large part because your father and grandfather are both entrenched members of the Mongrel Mob. Your life has also been made more difficult both physically and emotionally by reason of the physical disability that you have had to live with and cope with which has no doubt caused you distress and trauma, and has also no doubt had an adverse effect on your schooling and education. I am satisfied there is a nexus or causative link between the dysfunctional, violent and anti-social family upbringing you have experienced during your childhood and the violence evident in your present offending. I consider that you have a very limited degree of insight, empathy or appreciation of the harm you have caused and saying you can’t explain this to the
family of the victim is no answer whatsoever. Any genuine attempt to express your regrets would not count for less irrespective of the language that it was made in if it was a genuine apology and expression of regret but there has been none and those expressions of regret that have been conveyed to members of your family and the Court in this material that I have been provided with are somewhat late and do not carry with them any sense of sincere and true recognition of remorse.
[81] I will nevertheless make a limited allowance for remorse and I shall also make an allowance to have regard to your dysfunctional family upbringing and the violent context within which you spent much of your formative life, which normalised violence within your life amongst those with who you have family connections and your other associates. That normalisation of violence appears to have facilitated your ready recourse to violence on this occasion and recognising that and the personal issues that you have had to cope with which have interfered with your education and your ability to develop yourself through your education and into your present position as a young man, I will allow you a discount of 15 per cent on the starting point.
[82] That will result in the starting point of six and a half years being reduced to five years and six months. I do not consider it necessary to impose a minimum period of imprisonment in your case, Mr Tutakangahau, and the standard non-parole period of one-third the length of your sentence will apply.52
Sentence
[83]Mr Renata and Mr Tutakangahau would you please stand.
Kayleb Renata
[84] Kayleb Renata on the charge of murdering Jamaine Wharton I sentence you to life imprisonment, and I impose a minimum period of imprisonment of 10 years. That means that you will not become eligible to be considered for release on parole until you have served at least 10 years’ imprisonment.
52 Sentencing Act, s 86. See also the Parole Act 2002, s 84(1).
Roger Tutakangahau
[85] Roger Tutakangahau for the manslaughter of Jamaine Wharton I sentence you five years’ and six months’ imprisonment.
[86]You may both now stand down.
Paul Davison J
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